Participants: Lincoln Steed (Host), Allen Reinach
Series Code: LI
Program Code: LI000228A
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00:22 Welcome to the "Liberty Insider."
00:24 This is a program bringing you up-to-date news, 00:27 views, discussion, and analysis of religious liberty events 00:31 in the United States and around the world. 00:33 My name is Lincoln Steed, editor of Liberty Magazine. 00:37 And my guest on the program is Attorney Allen Reinach, 00:40 Executive Director of the Church State Council 00:43 and repeat guest I might add. 00:45 Glad to be with you. So welcome back. 00:46 Welcome back. Always. 00:49 Since we're talking about repeat performances, 00:52 there's something that I want to discuss with you 00:54 that has been often brought up on this program: 00:57 the Workplace Religious Freedom Act. 00:59 A national Workplace Religious Freedom Act. 01:03 Many people think that this is, 01:05 the United States absolutely forever, 01:08 has religious freedom. 01:10 The constitution first amendment, is that so? 01:13 Can we just keep it on the wall 01:16 and be happy that we have something constitutional 01:19 and it will be enforced? 01:21 Well, we're gonna have a lot of discussions today 01:24 and record different programs about different ways 01:27 in which our religious freedom has been eroded. 01:30 But in the workplace, the Supreme Court 01:33 has decimated the rights of believers 01:37 to practice their faith and keep a job. 01:40 And we've been working-- 01:41 Now they haven't fully taken it away 01:42 but the findings in particular cases 01:45 have practically diminished though, haven't they? 01:47 When the issue-- when the civil rights act-- 01:50 Next year is the 50th anniversary 01:52 of the civil rights act of 1964. 01:55 Here we are in 2013. 01:58 So 2014, 50th anniversary of church state council, 02:02 our organization and the civil rights act of 1964, 02:07 you know, outlawed discrimination 02:09 on the various bases like race, 02:12 national origin, and also religion. 02:15 But quickly the question arose, 02:18 what does it mean to discriminate 02:20 on the basis of religion? 02:21 Does it mean for example that a Sabbath observer 02:25 should be given a preferential schedule 02:27 and not be scheduled to work on Sabbath? 02:29 Should they be given accommodation? 02:31 So Congress went back in 1972 02:34 and clarified that accommodation, 02:37 religious accommodation was part of religious discrimination. 02:42 The Supreme Court very quickly decimated 02:46 the protections that Congress put in place 02:49 and said that the standard for a company 02:51 to provide accommodation was minimal, 02:54 de minimis, not much. 02:57 And I don't think very many people understand that, 03:00 that you can have a law but in its execution 03:02 it's held to such a low level 03:03 that it's of practically no value. 03:06 So even with that standard, 03:09 providing accommodation is so easy for most companies 03:14 that when they don't do it they are in violation of the law 03:17 even with a very low standard 03:19 but ever since the Americans with disabilities act 03:23 was passed and a reasonable balancing test 03:27 was put into place, we've been trying 03:30 to equate religious accommodation 03:33 with the accommodation of people with disabilities. 03:36 And we've been unsuccessful for 20 years 03:38 at the congressional level, at the national level. 03:42 Now I'm a bit of a contrarian, 03:44 so I just want to throw something in for our viewers. 03:48 I think what you are explaining 03:50 is legally troublesome and sometimes procedurally so. 03:54 But the United States still has the constitution, 03:57 we still have a society where there is a broad respect 04:01 for religion and our Seventh-day Adventist Church-- 04:04 I disagree that we have broad respect for religion. 04:06 Well, broad in the sense that it's not isolated to one path, 04:09 you know, there is a give way to it. 04:12 And our church is often involved 04:14 in Seventh-day Adventists seeking accommodation 04:16 and in most of those cases, it's a simple matter 04:19 of talking to the employer and they say oh, 04:21 yes we should give, you know, 04:22 we have an obligation to accommodate, 04:24 you know, do it. 04:25 But what you are talking about is an increasing phenomenon 04:29 when it's legally challenged, 04:32 this de minimis standard means that it's hardly enforceable, 04:35 the right that the individual is given. 04:37 But most people don't go that step. 04:42 A huge number of Seventh-day Adventists 04:44 always get some sort of accommodation 04:46 because not because the employer 04:48 can be forced to it but they believe 04:52 that they are required to do it 04:54 and they do it in good faith. 04:56 Some do and some don't. 04:58 Yes, yeah, and the ones that don't-- 05:00 There are many companies-- 05:01 The ones that don't because of the Supreme Court rulings, 05:03 we're finding it very hard to hold them to. 05:07 1990 the Supreme Court handed down an infamous case, 05:12 we call it the Peyote case, the employment division 05:14 against Smith that decimated free exercise of religion. 05:19 Explain those cases. 05:20 The broader message has been that the individual rights 05:25 of conscious religious liberty is no longer protected. 05:28 That's the broader message, and it has confused employers 05:32 who think that they don't have to accommodate. 05:34 Yes, and I've had many cases 05:38 where the employer is confused 05:40 and when they're told that they do have an obligation, 05:42 they often, well, we guess we'll give the accommodation. 05:44 If they legally challenge it-- 05:46 The prevailing corporate ethos that we run into time 05:50 and time again is we are the boss, 05:53 we tell you when you're gonna work, 05:55 and if you don't get with the program 05:57 we don't want you. 05:59 And that's so true especially in the hiring process 06:03 where they ask about 24/7 availability 06:07 and if you are not available, you know, too bad so sad. 06:11 We've had it, you know, my own teenage son 06:14 when he applied for a summer job at Target 06:17 they liked him, he had work history, 06:19 he is a respectful kid, 06:21 he would have been a great worker. 06:23 They hire him to work 12 hours a week, 06:26 and when they found out he needed Sabbath accommodation, 06:30 they refused to hire him, it was totally absurd. 06:33 And you're getting to something else 06:35 we've discussed here. 06:36 They shouldn't really be asking ahead of time 06:40 whether he needs a religious accommodation, but they are-- 06:43 Well, I am jumping ahead but one of the things 06:45 that we're doing in California 06:47 is we are working, you know, we passed last year 06:50 a State Workplace Religious Freedom Act 06:53 and because of that, it's time to redo the regulations 06:56 because the regulations need to be updated. 06:59 And one of the requests that we're-- 07:02 there's already a regulation 07:04 dealing with pre-employment inquiries, 07:07 what an employer can ask. 07:09 And in the disability context, 07:12 you can't ask whether somebody needs 07:14 an accommodation for their disability. 07:16 You have to ask, can you do the essential functions of the job 07:20 with or without an accommodation? 07:21 And if somebody needs an accommodation, 07:24 they discuss it after they are hired. 07:26 And isn't that true with religion? 07:27 Well, no, with religion you can ask about 07:30 24/7 availability and screen people out 07:34 and were seeking to have the regulations 07:37 say no, you can no longer do that. 07:39 Let's back up again, as you say 07:41 we've gotten a little ahead of ourselves. 07:42 For a long time on this program 07:45 and there is an activity of the Seventh-day Adventist Church 07:49 operating out of our headquarters in Washington. 07:51 We've been working on the federal level 07:53 to get the Workplace Religious Freedom Act. 07:56 Right. Our religious leader for liaison-- 08:01 Several of them over the years. 08:02 That's why I hesitated who I should name 08:05 but going back I'd say what about eight years. 08:08 We've been working on this far as long as I've been here. 08:10 Twenty years-- Many, many years. 08:11 Twenty years we've been working on. 08:12 At least eight years or so it's been the highest priority 08:15 and I remember there was that sweet moment 08:18 when we had bipartisan support, 08:20 there was Hillary Clinton, there was-- 08:22 John Kerry. Yeah, also Kerry. 08:25 Rick Santorum. Rick Santorum. 08:27 Both parties were backing it. 08:29 We had two hearings in Congress, two congressional hearings. 08:33 We thought we had it, although, by the second hearing 08:35 it was obvious not any of the employers were opposed to it 08:38 which was somewhat of a given but that the gay lobby--Right. 08:43 Well, the gay lobby was the game changer. 08:46 They started to structure this or say that if this passed, 08:52 it would inhabit their rights in the workplace 08:54 and, of course, that was not the intent 08:55 nor likely the dynamic. 08:57 It was just that they said that so it died. 08:59 We can't seem to activate it now 09:01 and I think it's a logical consequence 09:04 what you are doing in California 09:05 is the way to go, state by state. 09:08 Well, look, there is a couple of messages here. 09:11 One is that our whole theory of rights 09:16 has been turned inside out. 09:19 The basic theory of rights in this country 09:22 is that the majority, 09:24 their interests are adequately represented in the legislature 09:28 which is a body that, you know, people are voted by majority. 09:32 So majorities have sufficient clout 09:35 to have influence in the legislative process. 09:38 Rights are supposed to be protecting minorities 09:42 against the interests and tyranny of the majority. 09:47 What we have been finding though, 09:49 is the courts have turned on the rights of the minorities, 09:55 have decimated religious freedom consistently, 09:58 ruling against religious freedom and to the extent 10:01 that we have protection for religious liberty at all 10:04 it's because the legislative bodies, 10:07 Congress, state legislatures have become receptive 10:11 to protecting the rights of the minority. 10:14 So this is a complete repudiation 10:17 of our entire system of rights. 10:21 Yes, I don't think the courts are turning against religion 10:24 but they are turning against individual rights 10:27 to some degree, that's a larger question. 10:31 I did a survey recently of the last two decades 10:35 of California cases involving religion. 10:38 I was interested to see 'cause I'm giving a presentation 10:42 for the San Diego Bar Association, 10:45 I'll be the key note speaker. 10:47 And what I found surprised me, 10:50 religious freedom has consistently lost 10:55 in the California courts and what the courts have done 10:59 is consistently defer to the legislative scheme. 11:03 So if the statute issue exempts religion, 11:07 fine, it will be upheld, 11:10 if there is no protection for religion, 11:12 fine, religion will lose, religious freedom will lose. 11:15 Half of that's good, 11:16 we don't want activists caught on the old 11:20 so that you know the activist judging. 11:22 We have activist courts decimating our freedom. 11:26 We do have them but you and I 11:28 are going to bounce here I can tell. 11:30 But we do want courts to be respectful of the legislature. 11:33 So if they are deferring to legislation generally, that's-- 11:37 As long as what the legislature is doing is constitutional, 11:41 we want them upholding them, but when the legislature tramps, 11:45 you know, tramples on our rights. 11:47 I think it's well enough documented 11:49 by now because as much as anything 11:51 because of the culture of law schools 11:53 that the new generation of judges 11:56 are not so respectful of religion 11:59 and individual religious sentiments. 12:01 So there is a sort of a cynicism built into the system. 12:05 But the point I wanted to make about the US, 12:09 even the framers of the US constitution 12:12 were not that keen on majoritarian rule, were they? 12:15 The whole representative government was designed 12:18 to sort of buffer against, 12:22 you know, the aggregate of voters sort of pushing 12:24 for something that would minimize 12:25 the rights of the minority. 12:26 You know, we hear a lot from conservative circles 12:30 that the phrase separation of church and state 12:32 is not in the constitution. 12:35 The phrase separation of powers is not in the constitution, 12:38 but that's what you are talking about 12:40 what the constitution does is divide power 12:44 among the three branches of government 12:45 and, of course, we also have power divided 12:49 between federal state and local government. 12:52 So we have a separation of powers 12:55 based on the premise that human nature is flawed 13:00 and that there is a tendency to accumulate power 13:04 and that the accumulation of power leads to tyranny. 13:07 And so we try to-- 13:08 We are mentioning here, there is a lot--every day 13:11 you know the same we read these reports 13:13 from Washington on the political situation, 13:15 not just on religious liberty, narrowly 13:17 and, you know, everyone says it's dysfunctional. 13:20 It probably is somewhat dysfunctional at the moment. 13:23 Things can't get through but that was by desire, wasn't it? 13:27 It was to slow the process down 13:30 so that rapid and oppressive things 13:32 are not easily passable through it. 13:34 Well, congress has become far more dysfunctional 13:38 and than ever it was designed to be. 13:42 But my point is that certain amount of what passes 13:45 for dysfunction is intended to slow down 13:47 the rush to injustice, it's to give pause, 13:51 to balance one interest against another 13:54 and then with the constitution 13:56 to guarantee the rights of everybody. 13:59 Well, we'll back after a short break. 14:01 I'm sure you are enjoying this discussion. 14:03 There is a lot of play here, so stay with us 14:06 for a discussion of the Workplace Religious Freedom Act. |
Revised 2014-12-17