Welcome to the
"Liberty Insider."
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This is a program
bringing you up-to-date news,
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views, discussion, and analysis
of religious liberty events
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in the United States
and around the world.
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My name is Lincoln Steed,
editor of Liberty Magazine.
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And my guest on the program
is Attorney Allen Reinach,
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Executive Director of
the Church State Council
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and repeat guest I might add.
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Glad to be with
you. So welcome back.
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Welcome back. Always.
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Since we're talking
about repeat performances,
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there's something that
I want to discuss with you
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that has been often
brought up on this program:
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the Workplace
Religious Freedom Act.
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A national Workplace
Religious Freedom Act.
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Many people think that this is,
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the United States
absolutely forever,
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has religious freedom.
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The constitution
first amendment, is that so?
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Can we just keep it on the wall
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and be happy that we
have something constitutional
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and it will be enforced?
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Well, we're gonna have
a lot of discussions today
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and record different
programs about different ways
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in which our religious
freedom has been eroded.
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But in the
workplace, the Supreme Court
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has decimated the
rights of believers
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to practice their
faith and keep a job.
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And we've been working--
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Now they haven't
fully taken it away
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but the findings
in particular cases
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have practically
diminished though, haven't they?
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When the issue-- when
the civil rights act--
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Next year is
the 50th anniversary
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of the civil rights act of 1964.
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Here we are in 2013.
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So 2014, 50th anniversary
of church state council,
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our organization and the
civil rights act of 1964,
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you know,
outlawed discrimination
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on the various bases like race,
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national origin,
and also religion.
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But quickly the question arose,
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what does it
mean to discriminate
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on the basis of religion?
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Does it mean for
example that a Sabbath observer
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should be given a
preferential schedule
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and not be
scheduled to work on Sabbath?
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Should they be
given accommodation?
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So Congress went back in 1972
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and clarified
that accommodation,
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religious accommodation was part
of religious discrimination.
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The Supreme Court
very quickly decimated
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the protections that
Congress put in place
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and said that the
standard for a company
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to provide
accommodation was minimal,
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de minimis, not much.
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And I don't think very
many people understand that,
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that you can have a
law but in its execution
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it's held to such a low level
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that it's of
practically no value.
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So even with that standard,
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providing accommodation
is so easy for most companies
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that when they don't do it
they are in violation of the law
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even with a very low standard
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but ever since the
Americans with disabilities act
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was passed and a
reasonable balancing test
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was put into
place, we've been trying
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to equate
religious accommodation
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with the accommodation
of people with disabilities.
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And we've been
unsuccessful for 20 years
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at the congressional
level, at the national level.
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Now I'm a bit of a contrarian,
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so I just want to throw
something in for our viewers.
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I think what you are explaining
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is legally troublesome
and sometimes procedurally so.
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But the United States
still has the constitution,
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we still have a society
where there is a broad respect
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for religion and our
Seventh-day Adventist Church--
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I disagree that we have
broad respect for religion.
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Well, broad in the sense that
it's not isolated to one path,
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you know, there
is a give way to it.
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And our church is often involved
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in Seventh-day
Adventists seeking accommodation
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and in most of those
cases, it's a simple matter
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of talking to the
employer and they say oh,
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yes we should give, you know,
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we have an
obligation to accommodate,
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you know, do it.
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But what you are talking about
is an increasing phenomenon
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when it's legally challenged,
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this de minimis standard means
that it's hardly enforceable,
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the right that the
individual is given.
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But most people
don't go that step.
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A huge number of
Seventh-day Adventists
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always get some
sort of accommodation
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because not because the employer
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can be forced to
it but they believe
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that they are required to do it
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and they do it in good faith.
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Some do and some don't.
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Yes, yeah, and
the ones that don't--
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There are many companies--
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The ones that don't because
of the Supreme Court rulings,
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we're finding it
very hard to hold them to.
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1990 the Supreme Court
handed down an infamous case,
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we call it the Peyote
case, the employment division
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against Smith that decimated
free exercise of religion.
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Explain those cases.
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The broader message has
been that the individual rights
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of conscious religious
liberty is no longer protected.
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That's the broader message,
and it has confused employers
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who think that they
don't have to accommodate.
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Yes, and I've had many cases
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where the employer is confused
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and when they're told that
they do have an obligation,
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they often, well, we guess
we'll give the accommodation.
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If they legally challenge it--
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The prevailing corporate
ethos that we run into time
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and time again
is we are the boss,
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we tell you when
you're gonna work,
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and if you don't
get with the program
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we don't want you.
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And that's so true
especially in the hiring process
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where they ask
about 24/7 availability
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and if you are not available,
you know, too bad so sad.
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We've had it, you
know, my own teenage son
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when he applied for
a summer job at Target
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they liked him,
he had work history,
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he is a respectful kid,
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he would have
been a great worker.
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They hire him to
work 12 hours a week,
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and when they found out he
needed Sabbath accommodation,
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they refused to hire
him, it was totally absurd.
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And you're
getting to something else
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we've discussed here.
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They shouldn't really
be asking ahead of time
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whether he needs a religious
accommodation, but they are--
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Well, I am jumping
ahead but one of the things
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that we're doing in California
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is we are working, you
know, we passed last year
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a State Workplace
Religious Freedom Act
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and because of that, it's
time to redo the regulations
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because the
regulations need to be updated.
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And one of the
requests that we're--
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there's already a regulation
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dealing with
pre-employment inquiries,
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what an employer can ask.
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And in the disability context,
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you can't ask
whether somebody needs
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an accommodation
for their disability.
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You have to ask, can you do the
essential functions of the job
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with or without
an accommodation?
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And if somebody
needs an accommodation,
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they discuss it
after they are hired.
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And isn't that
true with religion?
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Well, no, with
religion you can ask about
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24/7 availability
and screen people out
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and were seeking to
have the regulations
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say no, you can
no longer do that.
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Let's back up again, as you say
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we've gotten a
little ahead of ourselves.
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For a long time on this program
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and there is an activity of
the Seventh-day Adventist Church
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operating out of our
headquarters in Washington.
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We've been working
on the federal level
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to get the Workplace
Religious Freedom Act.
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Right. Our
religious leader for liaison--
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Several of them over the years.
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That's why I
hesitated who I should name
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but going back I'd say
what about eight years.
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We've been working on this
far as long as I've been here.
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Twenty years-- Many, many years.
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Twenty years
we've been working on.
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At least eight years or so
it's been the highest priority
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and I remember there
was that sweet moment
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when we had bipartisan support,
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there was Hillary
Clinton, there was--
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John Kerry. Yeah, also Kerry.
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Rick Santorum. Rick Santorum.
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Both parties were backing it.
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We had two hearings in Congress,
two congressional hearings.
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We thought we had it,
although, by the second hearing
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it was obvious not any of
the employers were opposed to it
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which was somewhat of a given
but that the gay lobby--Right.
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Well, the gay lobby
was the game changer.
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They started to structure
this or say that if this passed,
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it would inhabit their
rights in the workplace
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and, of course,
that was not the intent
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nor likely the dynamic.
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It was just that
they said that so it died.
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We can't seem to activate it now
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and I think it's a
logical consequence
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what you are doing in California
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is the way to
go, state by state.
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Well, look, there is a
couple of messages here.
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One is that our
whole theory of rights
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has been turned inside out.
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The basic theory of
rights in this country
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is that the majority,
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their interests are adequately
represented in the legislature
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which is a body that, you know,
people are voted by majority.
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So majorities
have sufficient clout
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to have influence in
the legislative process.
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Rights are supposed to
be protecting minorities
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against the interests
and tyranny of the majority.
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What we have
been finding though,
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is the courts have turned on
the rights of the minorities,
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have decimated
religious freedom consistently,
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ruling against religious
freedom and to the extent
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that we have protection
for religious liberty at all
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it's because the
legislative bodies,
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Congress, state legislatures
have become receptive
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to protecting the
rights of the minority.
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So this is a
complete repudiation
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of our entire system of rights.
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Yes, I don't think the courts
are turning against religion
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but they are turning
against individual rights
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to some degree,
that's a larger question.
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I did a survey
recently of the last two decades
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of California
cases involving religion.
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I was interested to see
'cause I'm giving a presentation
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for the San
Diego Bar Association,
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I'll be the key note speaker.
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And what I found surprised me,
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religious freedom
has consistently lost
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in the California courts
and what the courts have done
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is consistently defer
to the legislative scheme.
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So if the statute
issue exempts religion,
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fine, it will be upheld,
00:11:07.86\00:11:10.15
if there is no
protection for religion,
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fine, religion will lose,
religious freedom will lose.
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Half of that's good,
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we don't want
activists caught on the old
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so that you know
the activist judging.
00:11:20.45\00:11:22.45
We have activist
courts decimating our freedom.
00:11:22.48\00:11:26.66
We do have them but you and I
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are going to
bounce here I can tell.
00:11:28.96\00:11:30.46
But we do want courts to be
respectful of the legislature.
00:11:30.49\00:11:33.91
So if they are deferring to
legislation generally, that's--
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As long as what the legislature
is doing is constitutional,
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we want them upholding them,
but when the legislature tramps,
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you know,
tramples on our rights.
00:11:45.13\00:11:47.19
I think it's
well enough documented
00:11:47.22\00:11:49.23
by now because
as much as anything
00:11:49.26\00:11:51.46
because of the
culture of law schools
00:11:51.49\00:11:53.81
that the new
generation of judges
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are not so
respectful of religion
00:11:56.77\00:11:59.01
and individual
religious sentiments.
00:11:59.04\00:12:01.54
So there is a sort of a
cynicism built into the system.
00:12:01.57\00:12:05.47
But the point I
wanted to make about the US,
00:12:05.50\00:12:09.82
even the framers
of the US constitution
00:12:09.85\00:12:12.06
were not that keen on
majoritarian rule, were they?
00:12:12.09\00:12:15.36
The whole representative
government was designed
00:12:15.39\00:12:18.38
to sort of buffer against,
00:12:18.41\00:12:22.11
you know, the aggregate
of voters sort of pushing
00:12:22.14\00:12:24.08
for something
that would minimize
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the rights of the minority.
00:12:25.55\00:12:26.91
You know, we hear a lot
from conservative circles
00:12:26.94\00:12:30.35
that the phrase
separation of church and state
00:12:30.38\00:12:32.66
is not in the constitution.
00:12:32.69\00:12:35.16
The phrase separation of powers
is not in the constitution,
00:12:35.19\00:12:38.64
but that's what
you are talking about
00:12:38.67\00:12:40.62
what the constitution
does is divide power
00:12:40.65\00:12:44.00
among the three
branches of government
00:12:44.03\00:12:45.83
and, of course, we
also have power divided
00:12:45.86\00:12:49.25
between federal
state and local government.
00:12:49.28\00:12:52.04
So we have a
separation of powers
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based on the premise
that human nature is flawed
00:12:55.04\00:13:00.88
and that there is a
tendency to accumulate power
00:13:00.91\00:13:04.48
and that the accumulation
of power leads to tyranny.
00:13:04.51\00:13:07.57
And so we try to--
00:13:07.60\00:13:08.79
We are mentioning here,
there is a lot--every day
00:13:08.82\00:13:11.01
you know the same
we read these reports
00:13:11.04\00:13:12.97
from Washington on
the political situation,
00:13:13.00\00:13:15.22
not just on
religious liberty, narrowly
00:13:15.25\00:13:17.77
and, you know, everyone
says it's dysfunctional.
00:13:17.80\00:13:20.27
It probably is somewhat
dysfunctional at the moment.
00:13:20.30\00:13:23.92
Things can't get through but
that was by desire, wasn't it?
00:13:23.95\00:13:27.53
It was to slow the process down
00:13:27.56\00:13:29.97
so that rapid
and oppressive things
00:13:30.00\00:13:32.43
are not easily
passable through it.
00:13:32.46\00:13:34.81
Well, congress has
become far more dysfunctional
00:13:34.84\00:13:38.21
and than ever it
was designed to be.
00:13:38.24\00:13:42.68
But my point is that
certain amount of what passes
00:13:42.71\00:13:45.26
for dysfunction is
intended to slow down
00:13:45.29\00:13:47.79
the rush to
injustice, it's to give pause,
00:13:47.82\00:13:51.80
to balance one
interest against another
00:13:51.83\00:13:54.50
and then with the constitution
00:13:54.53\00:13:56.48
to guarantee the
rights of everybody.
00:13:56.51\00:13:59.37
Well, we'll back
after a short break.
00:13:59.40\00:14:01.42
I'm sure you are
enjoying this discussion.
00:14:01.45\00:14:03.11
There is a lot of
play here, so stay with us
00:14:03.14\00:14:06.00
for a discussion of the
Workplace Religious Freedom Act.
00:14:06.03\00:14:09.06