Daniel Mach: Henry Zumach Freedom From Religious Fundamentalism

I

am here to introduce our next speaker,

and

there's a little story that goes with it first. In 2017, a lifetime member extraordinaire of the Freedom From Religion Foundation, Henry Zumach, known as Hank, approached the Freedom From Religion Foundation about creating an endowment

for

a new award called the Freedom From Religious Fundamentalism Award.

Note

that if you put these together, you get FFRF's FFRF Award.

Hank

has grown the endowment, which single-handedly since 2017,

with

a certain percentage going to the annual award, and

today

the award has grown to $35,000.

And

I'm honored to introduce the recipient of the 2022 Henry H. Zumach Freedom From Religious Fundamentalism Award, which is going to the ACLU Program on Freedom of Religion and Belief, accepting the award on the behalf of the program is its director,

Dan

Mack.

Mack

leads a wide range of religious liberty litigation, advocacy, and educational efforts nationwide.

Often

writes, teaches, and speaks publicly about religious freedom issues.

FFRF

attorneys have enjoyed working with Daniel Mack, who currently serves as an adjunct professor of law at the George Washington University Law School,

focusing

on constitutional law and religious liberty.

And

we know

he'll

have a lot to say about both of these topics. Please come up, Dan, and accept this plaque

and

the award on behalf of the ACLU.

Good

morning, everyone.

Good morning.

I appreciated in the

earlier

session just now the question about the God's Not Dead franchise.

It's

an artistically appalling franchise, leaving aside whatever the message. But there's one funny bit that I often return to in, I think it was the second of those movies, where

the

ACLU lawyer

is

the bad guy,

and

he's, you know, oppressing the poor teacher who just wants to pass along her faith, public school teacher,

to

her students. And

one

of the evil things that the ACLU lawyer does is mock

the

shoddy outfit of the lawyer on the other side. And of the, which I think is funny since I, you know, my regular uniform is a t-shirt and jeans. So this is one of the few times you'll actually see me in a jacket, except when I'm in court. So, yeah, that to me is, it's one of the great moments. There are many in that.

Anyway,

you know, 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. Ours is a special partnership, and it's vital partnership,

and

it's never been more necessary.

As

you know all too well, we find ourselves in an unprecedented, dangerous era for religious liberty,

and

it all starts at the top with the U.S. Supreme Court

and

its ultra-conservative supermajority. So I'm going to talk about that a bit today.

The

justices in that supermajority have embarked on an alarming project to elevate the free exercise of religion, which we at the ACLU value highly,

but

they're elevating it above other crucial rights and constitutional protections.

And

at the same time, they are engaged in an outright assault

on

the separation of church and state,

which

is, of course, a cornerstone of religious freedom.

Just

this past Supreme Court term, two cases in particular illustrate this disturbing trend.

Both

were about religion in schools.

The

first case was called Carson v. Macon,

in

which the court required the state of Maine to fund private religious education if it supported private secular education.

So

what was the case about? Briefly,

it

involved a school voucher-type program in Maine,

a

tuition assistance program, which pays for students

in

rural areas that don't have their own public high schools to go to another public or private high school.

Under

the program, the state will pay, but not if the school uses the government funds to finance religious instruction or indoctrination.

Now,

that limitation that the state placed on those funds reflected both the state's long-standing interest in promoting the separation of church and state

and

the fact that this was a unique

program

that was meant to provide some rough equivalent

of

a public education to those who can't get it.

In

June,

the

Supreme Court ruled 6-3, a very common vote, obviously, at this point,

that

the state's restriction on that funding violated the federal free exercise clause because it supposedly discriminated against religion.

Now,

why is this a problem?

When

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

In

the past, the court used to guard against government-funded religion,

and

for good reason. Shielding taxpayers from compulsory support of religion lies at the heart

of

the Constitution's religious liberty protections. In fact, James Madison,

the

principal architect of the First Amendment, explicitly warned against government-funding religion, including government-funding of religious education, because it would be the first step, he feared,

in

permitting the state to force citizens to conform to the preferred faith

of

those in power.

Now,

though, the court isn't just allowing such funding, it is requiring it.

And

the main case, Carson, went further than ever before.

In

two earlier decisions,

bad

ones, to be sure,

the

court had held that states couldn't deny funding solely on the basis of the recipient's religious status, that is, just because they themselves were religious. But in Carson, the court expanded that rule to prevent states

from

denying funding based on the religious uses

of

the money, including religious instruction or indoctrination.

And

this is all, as I said, despite the fact

that

not too long ago,

the

court recognized that such funding could violate the Establishment Clause, which protects the separation of church and state.

as

the dissents in that case warned, we're now not at a point only where the court is ignoring the separation of religion and government,

which

would be bad enough.

The

court now thinks that protecting that vital separation

is

somehow its own constitutional violation.

And

so that further limits what states can do on their own to protect us all

when

the federal courts are falling short, which they're doing all too often these days. Now, the other truly dangerous religion decision from last term was a case called Kennedy v. Bremerton.

In

Kennedy, the court held that a public school had to allow its football coach

to

pray at the 50-yard line after games.

Now,

this case

is

problematic for so many reasons. I don't have time to get into them all right now. But here are a few. First of all, the court's

six

-person supermajority did the same thing that they did in the main case that I just mentioned.

So

they decided that well-meaning efforts by the government, which in this case was the public school,

to

maintain church-state separation have now become their own constitutional violation.

The

case is also a telling example of the lengths to which this new majority on the court

will

go

to

advance its crusade,

playing

fast and loose with the facts when it suits them,

even

when

there's

photographic evidence to the contrary, like there was in this case. In the Kennedy decision,

the

majority adopted what one lower court called a deceitful narrative

that

had been spun by the coach and his lawyers.

So

in the case,

the

Supreme Court described the coach's prayers as personal and quiet,

but

they were nothing of the sort. The coach delivered his prayers audibly

at

the 50-yard line, immediately after games, and often surrounded by students. And in fact, in the court decision itself, there are pictures that show this. The majority also said that the coach had given up any intent to pray with his students.

But

in fact,

he

repeatedly demanded that he be able to continue praying with his students,

even

saying that he was, quote, helping these kids be better people.

The

court also claimed that no students were coerced

into

the prayer.

But

the record in the case shows that at least some of the players and their families

complained,

and they said that they participated in this prayer with the coach

only

to avoid

separating

themselves from the team

and

suffering all of the possible consequences that can come with that, like losing playing time.

And

regardless, that misses the point.

As

the Supreme Court had recognized for over 50 years before that,

just

forcing students to make that choice, putting them in that position to choose between joining your teacher or your coach in prayer or

choosing

not to and making a public protest and

sending

that message to someone who has such authority over you, just putting students to that choice is inherently coercive

and

therefore unconstitutional. That's what the court had acknowledged many times.

Not

this time.

Now

maybe one of the biggest bombshells of this

coach

case, the Kennedy case, was that the court finally scrapped what was known as the Lemon Test

for

determining whether there is a violation of the Establishment Clause, whether the separation of church and state

has

been breached.

That

test,

dating

back to the 70s, has had its critics over the years, but it's generally served the cause of religious freedom pretty well over the years.

not

anymore.

In

the Kennedy case, the court took the final step of killing that test and its offshoot, something known as the Endorsement Test,

and

maybe showing at least a little bit of embarrassment at how many landmark cases the court has been overturning lately.

The

court pretended in the Kennedy case

that

the Lemon Test was already dead

before

this case. They said it had long since abandoned

the

test,

even

though that was just not true. But they didn't want to come out and say, okay, here's another one we're overruling.

Anyway,

now it'll be much harder to show

that

a government action or policy violates the separation of church and state. It's now not enough to prove that, say,

a

government religious display or a government-sponsored prayer has the purpose

or

has the effect of promoting or endorsing religion

as

had been the case under the Lemon Test, which, you know, had been in place for the past 50 years.

So

what's the new test that the court gives us

to

replace this Lemon Test?

The

court only offers vague suggestions. The court says we should determine whether the Establishment Clause has been violated

by

reference to, quote, historical practices and understandings.

Historical

practices and understandings.

What

does that mean?

The

court doesn't say. The court doesn't even try.

But

if other cases are any indication, history might mean everything

from

what the founders supposedly thought about a specific religious practice

to

some hopelessly malleable notion about the country's overall commitment to religious exercise.

And

if that is what historical practices and understandings mean, then government action promoting religion could almost always be found constitutional.

Anything

goes, maybe, unless the government is actually, and some of the justices believe that, unless the government is actually forcing you to attend church or forcing you to profess religious beliefs

with

the threat of criminal or civil penalties.

Yeah. It's

scary.

And

I fear that we are going to see a lot more blatant religious favoritism by the government very soon. Now, unfortunately, those are not the only bad developments in the Supreme Court, as you all know.

there

are some bad recent ones. Obviously, there is the radical Dobbs decision, which overturned Roe v. Wade.

Now,

while that technically is not

a

religion case,

I

think you can see why religious favoritism is looming

in

the background of that case.

So,

you know, you all know about Dobbs, I'm sure, but, you know, this was a shameful revocation of a vital constitutional right

and

the court's conservative majority effectively

sanctioned

an understanding of abortion that is largely associated

with

particular religious viewpoints

with

no regard

for

the fact that followers of other faiths and or none

believe

that access to abortion is essential for all. As we know, there is a wide diversity of faith perspectives and non-faith perspectives about abortion.

Yet,

immediately after Dobbs, many lawmakers are rushing to codify just one set of religious views

at

the expense of all others, including the non-religious. The extreme conservatives have gotten so used to having their way

on

the Supreme Court that they cannot fathom a loss,

even

a minor procedural one. So, take the recent dispute which you may have read about over Yeshiva University in New York

where

an LGBTQ student group

has

been denied recognition by the school solely because it's an LGBTQ student group. So, what does that mean? they can't hold meetings on campus.

They

don't have access to bulletin boards or the listserv at the school to announce their activities.

And

so, they went to court and this is in state court that they first went to. Now, a few facts are important to know here. First of all, an LGBTQ student club has existed at the Yeshiva Law School, Cardozo, for decades.

And

also, Yeshiva's own policies publicly guarantee equal treatment

under

New York City's

human

rights law.

And

for those reasons and others, the lower court in the state

ruled

for the student group.

they

said that

the

human rights law applied, the civil rights law applied,

and

that the school had to recognize the group. So, the group went straight up to the Supreme Court seeking emergency relief.

They

said, please help us, you've got to fix this. And maybe, a little surprisingly, the Supreme Court denied that emergency relief, but

don't

get your hopes up too much on this. The denial was just

based

on procedural grounds.

It

had nothing to do with the actual merits of the case. It was all about the procedural hoops that the school should have jumped through but didn't before going to the Supreme Court. So, you have to do certain things before you just try to go straight and skip over everything, go to the Supreme Court.

The

school didn't do that and the Supreme Court said, okay, do that first

and

then once you've done that you can come back to us. So, that doesn't seem like a big deal, right? The court didn't say anything about the substance of the case and yet, there is

a

fairly angry dissent written by Justice Alito on behalf of four justices complaining, basically, that the sky was falling for the ultra-conservatives. They couldn't believe this was going on

and

they characterized what the student group was doing as asking New York to enforce

the

state's preferred interpretation of Torah, of scripture,

which

was not what was going on in this case at all but nonetheless, the conservatives were so up in arms in the court, they called it a shocking development and they promised that when things got back up there,

we'll

rule for the school, don't you worry, is what they said. So even a slight bump in the road for them is treated as some dramatic shocking development. Now, all of these recent cases

in

the Supreme Court follow on the heels of

action

in recent years to, again, elevate religious exercise above

other

rights and civil liberties.

So,

for example,

the

courts relatively recently sided with

with

a social service provider

who

for religious reasons discriminated against

couples who

wanted to be

foster

parents. The group wouldn't

certify

them because they said certifying gay couples was against their religious beliefs.

This

is one of our cases. Disclaimer. and the court ruled for this service provider.

It

said that they had

a

right to get the contract

with

the city of Philadelphia and to continue discriminating against families.

In

a related matter, the court has sided with businesses who say they don't want to, this is a Hobby Lobby case, which you probably know about, say they don't want to provide certain insurance coverage that's required by the Affordable Care Act for religious reasons. They don't want to cover contraception.

So,

you know, for their employees.

This

is the same Supreme Court that,

at

the height of the pandemic, gave churches a religious exemption from health and safety measures

at

the height

of

the COVID pandemic.

And

let's be clear.

The

court isn't just elevating religion over non-religion, which, of course, would be bad enough. It has this automatic embrace

only

of certain types

of

religion claims.

So, compare

two cases from a few years back.

First, the

Masterpiece Cake Shop case. You know, this is another one where we were on the losing side. That seems to be a theme here.

There

was a bakery that discriminated against our clients, a same-sex couple that wanted a wedding cake.

The

court sided with

the

bakery

and the

reason given was that the court said that the process, so in none of these cases, just to be clear, has the court come out and said, yes,

there

is a blanket religious right to discriminate. so there are a lot of nuances in a bunch of these cases. In this one, the court said, the process was tainted.

The

process was anti-religion. Why?

For

one thing, some of the government officials involved in enforcing Colorado's anti-discrimination laws had made some statements

that

the court said were so blatantly hostile to religion that they tainted the entire process.

Here

are the statements. Here's one. Quote,

it

is one of the most despicable pieces of rhetoric that people can use

to

use their religion to hurt others. Another one,

this

is another statement that was cited, that the baker, this is a statement made, again, by the officials in the state who are enforcing the civil rights laws.

The

baker can believe what he wants to believe, but he can't act on that belief and discriminate

if

he decides to do business in this state.

Okay,

that was it. Now, despite the fact that there was clear discrimination against

gay

couples,

the

court said that those statements and other parts of the process showed such hostility

that

the entire process was tainted and we can't enforce the civil rights laws

in

that case.

That

same year,

very

close in time to that decision,

the

court upheld President Trump's Muslim ban.

Even

though

Trump

had explicitly and repeatedly disparaged Muslims and Islam, he said, for example, that, quote, Islam hates us

and,

quote, we're having problems with Muslims coming into the country and then he formally called, he actually called explicitly for a total and complete shutdown of Muslims entering the United States.

Okay,

this is an entire faith that he's singled out and said, we're keeping them out of the country and then he enacted a ban that had pretty much that effect.

What

did the court do? It let it slide.

It

upheld the ban.

So

I guess anti-religious hostility is a problem except when it isn't.

So,

okay, thus far I've focused

on

the Supreme Court.

But

the lower courts have seen their fair share of mischief,

too.

Last month,

in

an FFRF case,

a

federal court of appeals actually allowed a judge to open, it was a justice of the peace, here in Texas to lock his doors and open court sessions

with

a prayer ceremony.

And

a

federal

panel

amazingly said

that was fine and said it was not coercive. Keep in mind what's going on here. This is

a

prayer ceremony. If you want to excuse yourself, you have to let the court know then the doors are locked

and

then you have to appear before this judge

who

started the prayer ceremony. The federal court said that's fine. It's not coercive. You know, as always, FFRF there is fighting the good fight but you see what we're all up against here. A federal judge also here in Texas ruled that employers who have religious objections

to

provide coverage for PrEP for medication for HIV prevention don't have to provide that coverage because of their religious objections even though it's required by the Affordable Care Act. That same judge

ruled

for plaintiffs challenging another ACA rule.

This

time it was an HHS regulation clarifying that the Affordable Care Act

bars

health care entities from ones that receive federal funds bars them from discriminating

against

patients and employees

because

they are transgender or because they seek reproductive care.

The

list goes on.

And

back to schools.

Returning

to that issue for a second. Religion issues remain hotly contested in public schools in

public schools

and kids are often bearing the brunt of this as for example in the growing number of cases where public school teachers are claiming a religious right

to

misgender students.

and

also in public schools just

garden

variety old school violations of the separation of church and state remain.

They're

prevalent

despite

the fact

that

the Supreme Court

has, you

know, again, before recent times had said clear rules.

I

mean, this goes back to the seminal schools religion cases in the 1960s. Since then, it has been absolutely clear that public schools,

teachers,

and staff cannot lead kids in prayer

and

generally that public schools can't favor

or

promote religious doctrine.

But

despite that,

blatant

and widespread problems persist and even though the rules have been straightforward for over a half century,

I'll

just give you a few examples of that. There are so many. They're all too common in these cases. We had a case in Tennessee. School events regularly featured Christian prayer. Every week, the middle school principal instructed students to pray.

One

teacher read her students' Bible verses every morning. Biblical quotes on the walls, messages posted throughout the school with religious content and a large Latin cross was painted on the wall of the school gym.

Another

situation in Louisiana. They read the Lord's Prayer over the PA system. Again, I'm talking about public schools here, not private schools.

Every

morning,

prayer

was incorporated into nearly all school events

and

when our clients declined to stand for the Lord's Prayer, she was harassed by her classmates and called the devil.

School

officials called evolution a fairy tale and urged students

to

take the Bible literally. And they were mocked. Our clients were mocked when they even questioned this. Different, another parish in Louisiana, another case a few years earlier, our client, who was a Thai Buddhist sixth grader,

talking

about a sixth grader, his science teacher promoted creationism in class, told students that the Big Bang never happened and that the universe was created by God approximately 6,000 years ago, called evolution impossible and stupid

and

that stupid people made it up because they don't want to believe in God.

And

then this was the proof that they're right and evolution is wrong. If evolution was real, the teacher said, it would still be happening. Apes would be turning into human beings.

Yeah.

And just one final example of this kind of thing this time in South Carolina.

There

were rampant violations in the school. School officials were promoting religion at every turn. But it culminated in an evangelical revival assembly that had the stated purpose of saving students. Again, reminder, public school we're talking about.

So

this,

it

was a full day event. It featured a minister who delivered a sermon, a Christian rapper, and church members who prayed with students.

And

students at the event were urged to sign a pledge dedicating themselves to Christ.

Students

who didn't attend the revival were forced to spend

in

the afternoon in the in-school suspension room. And, you know, sometimes these things are hard to prove. Sometimes,

you

know, students tell us what happened and then the school denies it all. In that case, the Christian rapper himself was so proud of the event that he filmed it all and posted it

online.

So that was helpful. Now, these cases are just the tip of the iceberg.

that

they're the cases where we have families who are brave enough

to

step forward to complain. Now, in some of the more recent, the last few examples I gave,

the

schools caved after we sued. So the family, for example, in the South Carolina case, they won their case.

But

at great personal sacrifice. They were harassed

at

their home. They received death threats.

Their

dog was poisoned. And they couldn't get jobs. They lost a bunch of job opportunities. And they eventually had to leave town. And

things

like that happen in many of these cases. In the Louisiana case, as a result of the school official's conduct,

our

client was bullied and became so physically ill that they couldn't attend school and they had to

transfer

school and go 25 miles away.

The

family was targeted for harassment, including people showing up dressed in KKK hoods.

Yeah.

So,

that's

some of the bad news.

Where

does that leave us?

Well,

the good news is that we will never give up the fight.

Our

rights are too precious. And we and you and everyone in this country who cares about their liberties will not back down.

First

of all,

we

won't back down in the courts.

We're

going to keep fighting there too. Take the issue of prayer in schools, for example.

As

I mentioned earlier, the Supreme Court's majority in that

Kennedy

case, in the coach case,

went

out of its way to embrace

this

narrative, this deceitful narrative about what actually happened.

So,

the court pretended, contrary to the evidence,

that

the coach was only asking to give quiet, personal, solitary prayer.

Now,

that was all an absolute fiction, as the lower courts recognized.

But

now, here we are, we should take the court at its word.

I

know that's tough to do.

You

know, the decision is deeply problematic, but it's not a blank check for public schools to impose prayer on students.

Public

schools still have a duty to serve students of all faiths and those of none,

and

significant constitutional restrictions remain on school employees' ability to impose prayer on students

or

otherwise promote religion to them. So, in that Kennedy case,

the

court upheld the right of the coach only,

and

this is important, only to engage

in

a quiet and private act of prayer

that

was not endorsed by the school. Again, this is according to what the court said. Not endorsed by the school.

That

prayer that fell outside the coach's official responsibilities did not involve or coerce students and was not imposed on a captive audience. Again, leaving aside what actually happened, this is what the court pretended happened.

So,

all of those elements were critical to the decision,

and

staff prayers that don't share those features are still unconstitutional like they've been for over a half century.

And,

more broadly, on the court's new vague standard that I mentioned for determining whether the separation of church and state has been violated,

this

historical practices and understandings test.

There,

there too, there's still a lot we can do.

In

fact, the Supreme Court

has

in many cases over the years, including going back to the 40s, already engaged in a historical analysis of what the founders of this country believed about religion and what should or shouldn't be allowed when it comes

to

government religious favoritism.

So,

in doing so, in all of those prior cases,

the

court repeatedly reaffirmed,

based

on this historical analysis, looking at what the founders thought,

the

idea that the government has to be neutral, not only among religions,

but

also between religion and non-religion.

So,

we'll all continue to argue that, that

the

historical work has largely been done already by the court,

which

is not to say

that

the court won't shift gears or ignore all of that compelling analysis that it did in prior cases,

but

it's just a way of saying we're hardly operating on a blank slate.

In

other words,

all

is not lost in the courts,

at

least not yet.

Now,

that said, we need to continue to fight outside the courts,

too,

maybe now more than ever,

in

legislatures,

in

op-eds,

in

town halls, on street corners,

at

the dinner table.

We

need to tell them that it is not okay to treat everyone who's not a member of the religious majority as a second-class citizen.

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, legislators,

to

give a free pass

to

employers,

to

businesses or health care 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.

we will

be walking around with a mic for those who don't feel comfortable standing in line and this is just a friendly reminder

to

ask a question and not tell a personal story. You can tell our speakers' personal stories once they're off the stage

if

they're willing. Thank you.

I'm

Tom Waddell, the president of the main chapter of the freedom of the main chapter. I want you to know that the main chapter is actively opposing the Casey versus Macon decision.

the

debt decision only of forcing

states

to pay for religious schools only applies to schools that pay for private secular schools

but

exclude religious schools.

We

have already sent a letter to every legislator in the state and after November 8th, once we know who our new legislators are, we're going to do it again. And our position is to encourage the state of Maine to no longer fund private schools. So that, I didn't really have a question but I wanted to let you know that I am from Maine, we're very well aware of Casey versus Macon and that we're actively opposing that. Thank you.

Good, thank you. And keep up the good work on that. Yeah. One additional thing there, one thing the court left open

in

that bad decision

was

the state's ability to say we will not fund schools that discriminate. So they did not, they forbade the state from saying we will not fund schools that use the money to engage in religious indoctrination or other sorts of religious education. They said you have to fund that but they did not say you have to fund schools that discriminate against students in various ways. So that's still an open question.

Thank

you for all the work the ACLU does. I've been

a

practicing attorney in California for 40 years and I have a question that always comes to mind when I read these cases. Take the Philadelphia social service case for example.

On

the one side you have real people who are being denied access to adopt.

on

the other side you have a mythical belief

that's

stopping them. Has that ever been raised that way in a federal case other than maybe the Scopes trial?

I'm

sorry could you could you

repeat? Well

you have on the one side a gay couple on the other side you have the Catholic Church.

Okay

the gay couple are real people.

They

bleed they work they you know

they're

human beings. on the other side you have a belief that's based on no facts whatsoever and it's giving credence over real people's lives. Has that ever been raised that way in court?

Yes in various forms you know the Supreme Court wasn't buying it but you're absolutely right I mean I couldn't agree with you more that you know that

this

is a problem that's going on in the full for those who want to know the name of the case it's Fulton Fulton

versus

the city of Philadelphia. yeah that's what was going on in that case and I just want to be clear about one thing and I mentioned this earlier but it bears repeating

the

court didn't say that

this

social services organization has an absolute right to discriminate it based its decision on some tiny procedural not quite procedural thing but something in the contract that the city had with all of its providers the contract

the

city had what the court Supreme Court viewed as absolute discretion to decide whether or not to give exemptions

so

the Supreme Court said well if you have absolute discretion to decide whether or not to give exemptions you can't then deny this religious group an exemption now

the

city had never actually granted anyone an exemption from its non-discrimination rules but the case hinged on the idea that the city could have given an exemption so we have argued in cases since then that anytime you have a situation without such discretion to grant exemptions from civil rights laws

then

the rule doesn't apply

the

minutia regarding all of the various cases that you just so amply demonstrated that you were able to interpret and apply to a case

and

I feel like a lot of this is a waste of time and money because

and

I would hate to see FFRS or you know money wasted for that because it all is based on a good faith interpretation by a judge who's going to evenly apply the law

and

what are we doing about our answer to the federalist society this stuff has been going on for decades

their

packing of the courts

what

is our answer to that because I don't want to see

all

these cases go on with these Christian judges who what's the point you know how they're going to judge you know how they're going to rule in advance

what

is our answer to the federalist society that's my question

sure it's

a good question there are there are a variety of groups that are that are trying to do from the other side what the federalist society has done which is to ensure that the judiciary is made up of people who actually respect the constitution and not one particular set of viewpoints

it's

you know it's all politics I mean a lot of what is going on here is

baked

into the structure of our of our system here and we know it's pretty precarious when we're talking about voting rights

and things

like that so so some of what we need to do is

you

know speak with our vote on this and and support candidates who respect

the

separation of church and state who respect civil liberties there are efforts to try to ensure that judges who do respect the constitution are appointed but you know a lot of it boils down to who's in power at any given moment

good

morning thank you for your excellent work your excellent speech and I'd like to thank the FFRF legal team and everybody here at the convention for

every

smiling atheist for

helping

me to

talk

me off the ledge because this role reversal

and

the Bremerton case

is

like a simultaneous punch to the throat in the solar plexus and I depending on the midterm elections I think that

the

American experiment might be over my question is do you happen to know Amanda Scott she's a friend of FFRF

what

was my other question

I

forgot thank you very much

my

pleasure

it

looks like the time's run out I'm happy to field another

maybe

a final question

I've

been a card carrier for the ACLU since I was old enough to vote at 18 to look at my ID you have to look at my ACLU card before

when

I was younger the ACLU stood up for the KKK to

ensure

their right for marching and having parades

since

then the ACLU seems to have taken on a liberal bent that may not include defending

the

rights of conservative groups

is

that your position now that the ACLU would not defend conservative groups

no

not at all we defend conservative groups all the time we defend religious groups who spew hateful messages as long as they have a right to do so on street corners we defend groups who protest us the ACLU who think that we're wrong yeah and that too our continued defense of folks whom we don't agree with

doesn't

please everyone either at the ACLU but no that's absolutely something that we

feel

strongly about and will continue to do

let's

keep going

yeah

whoever's online I'm happy to answer any of your questions and let's

we

can end it after that

hi

there thank you so much for your work I will be brief what do you think can be done with respect to compelling recusal of Justice Thomas for the political activities of his wife

yeah

it's that's a very good question

the

the rules that apply to judges about when they must recuse themselves do not apply to the Supreme Court

so

it's

a

matter of the court policing itself and you know at this stage there's not much

that

we can do about that except

the

kind of thing that I was mentioning before and you may be

cynical

about that and it's understandable if you are but

I

think it is vital that we all continue to speak up

about

injustices and if those injustices relate

to

a perception that the court is not being neutral

we

need to say so

beyond

that I'm not I'm not sure I think it's just a matter

of continued

public pressure

yeah

I'm Beth Blick from St. Paul Minnesota and I know that you mentioned that in some places people have been suspended for refusing to go along with first religious activities have they also been expelled

at

other times

so

you're asking have students been expelled

yes yeah

I mean we've heard stories of students saying that they were punished in various ways I mean maybe expelled I can't think of a recent example but if someone then raised their hand and said actually I know of five I would not be shocked but offhand I don't know of that type of example but there is definitely a wide range of coercion going on

in

public schools when it comes to religion and that

that's

not just

peer

pressure but it's

pressure

by school officials and the like

all

around the country from the lowest offices to the highest incumbency

it really

depends on an oath

which

is

more

and more frequently provably violated

is

there anything that could be due on a fundamental level about swearing people in

and

then catching them

not

doing what they swore to do

can

they be impeached is there something about the electoral process

that

could maybe

tighten

down on these people

using

the oath that people take the oath of office it rarely happens that anyone says well you promised not to do this thing and you swore not to do this thing therefore you're now accountable I mean frankly public officials should be accountable whether or not

they

swear an oath and one important thing side note about oaths which I'm sure you all know is you have every right not to swear on any deity but having sworn the oath

yes

you theoretically should be held to that oath whether there's a cause of action for that that's a little more difficult I think the cause of action really rests

in

the violation of the constitution or whatever statutes apply

thank

you for your talk I have a couple questions about abortion restrictions actually violating others religious beliefs

and

it's my understanding that there are Jewish groups in Florida there's also the satanic temple that have started litigation to get exemptions from those abortion restrictions in certain states can you tell me what you think would be the outcome of such litigation is it likely to succeed

thank

you

it's

a good question there there

and

I think most people heard the question but there are a number of lawsuits right now asserting religious challenges to abortion restrictions it's too early to tell where those are going to go some of those are based on what I'll call free exercise type challenges you are the plaintiff say you are violating my faith because my faith tells me that

a

woman has a right to decide for herself what happens with her own body and my faith you are violating my faith by doing that some of those claims are more I'll put in the bucket of establishment clause type claims which is to say and I touched on this earlier in my remarks

the

state is violating the separation of church and state by taking sides on this essentially religious question about when life begins and all the rest and the state can't be doing that there have been one or two lower court decisions that have embraced that view a similar claim was made

40

years ago and the U.S. Supreme Court rejected that argument the Supreme Court said well

just

because these abortion restrictions happen to coincide with some religious views that doesn't automatically mean they violate the separation of church and state

so

what's happening now is some of these claims are being made in state courts under state constitutions

but

we'll just have to wait and see what happens with those

okay

two more questions and then I think we're good to go

hi

there thank you so much for what the ACLU has been doing I've been following the establishment clause for about 20 years because I've been working with social studies teachers on the issue of handling religion in the public schools and of course when the Bremerton decision came down and the Carson-Macon which I had forecasted about a year ago to a free thought group watch out it's coming it's going to be terrible I was not wrong about that and I found out in working with social studies teachers how much I depended on the establishment clause and the concept of legal neutrality I imagine everybody in this group has probably heard oh religious liberty it's for religion you know I think the language works against us and I found out that with teachers it was very effective to call it conscience liberty instead of religious liberty because conscience liberty you

know

like Roger Williams it belongs to everybody do you think the language has anything to play in these decisions and the concept that people think oh religious liberty is for religion rather than for the conscience of the person the citizen

yes

I do think language matters you know one of the reasons that

you

may have heard when I was introduced that the religion department at the national ACLU of which I'm the director

the

official title is the ACLU program on freedom of religion and belief

and

belief

was

added specifically for reasons similar to the ones mentioned which is to say we're talking about not just religion but the right not to have religion the right to not believe as well I make a point and you may have heard me do it today

of

including

the

separation of church and state and the freedom from religion the right not to believe

in

my concept

of

religious freedom and religious liberty and I do that because I think it's important to remind people that

those

things protect religious liberty as much

as

the right to exercise one's faith it's the right to make sure the government doesn't tell us what to believe and what not to believe so

and

we didn't make this up I mean this comes from Thomas Jefferson James Madison they didn't view these as two things separate over here they viewed them as all part of a unified whole and we do too now it's true that most when you hear religious freedom most people out there will think oh that means the right to practice my religion but I want to remind everyone that that also includes the right not to practice your religion the right not to have the government tell you what you need to believe

it

seems to me that in the current state of the world

the

United States is behind other countries in protections to personal privacy in the EU they have enacted laws to make sure that even private entities like businesses are able to be forced to remove certain information they're doing more to guarantee from a government perspective that people have a right to privacy and here it seems that that right is very implicit it's come up

in

relation to other cases and issues such as abortion in the past but do you think that there's an opportunity is there a pathway for us to more explicitly codify privacy rights in our country what's that pathway look like

yeah

there there have been efforts to do so and sometimes those efforts are modeled on European measures

I

will tell you that in talking to the younger generations including my kids they

things

like online privacy they seem not to care at all about

it

so I think it's going to be harder as time goes on not easier just because there is a whole generation that feels that

they

don't need that sort of privacy now I think they might view bodily autonomy like when we're talking about reproductive rights the right to contraception that sort of thing

they'll

view that as something entirely different they think that continues to be extremely important but other types of privacy like the ability to track what you've been doing online that's going to be a lot tougher as time goes on

okay

thank you everyone

appreciate

it

and

thanks for having me thank

you