Welcome to the Liberty Insider.
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This is a program bringing
you up-to-date information
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and analysis on
points of history
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that bear on religious liberty.
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My name is Lincoln Steed,
I'm editor of Liberty magazine
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and my guest on the
program is Greg Hamilton...
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How're you doing?
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President of the Northwest
Religious Liberty Association,
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and a great scholar
of American history.
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I try.
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Yeah, and you try very
well and from time to time
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you've written
articles in Liberty magazine
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that continue our
emphasis on history
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which is one theme of
biblical religious liberty base
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and constitutional.
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Let's talk about
recent American history
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and I'm trying to
think how to describe it.
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Let's talk about the supremes
and not the musical group
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that I remember real well,
you know, I hear a symphony,
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but it's not always a symphony
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coming out of the
Supreme Court, is it?
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No, there isn't, and with
the death of Antonin Scalia
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on the Supreme Court
that created this big hole.
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In fact, it was
so controversial that
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when President
Barack Obama appointed
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or nominated Merrick Garland
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to be the next
Justice of the Supreme Court,
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he wasn't even seen by Senate
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and House leaders
on the Republican side
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and thus it totally
squelched his nomination
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until the emergence
of the next president,
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which everybody assumed,
a lot of people assumed,
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that it would
be Hillary Clinton,
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even Donald Trump was surprised
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that he was
elected to be honest.
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I guess the Republicans didn't
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because they wouldn't
have blocked it otherwise.
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Well, no they were hopeful.
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They were just being
hopeful, they assumed that
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if they did block it for now
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that when if
Hillary Clinton emerged
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that they would
get Merrick Garland
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and that he was a
center-right justice
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and they would get
what they wanted anyway,
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and so their gamble
was a pretty safe gambit
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for the most part,
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so they were just
kind of holding him off
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until the inevitable.
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Well, guess what?
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Everybody was
shocked, it was an earthquake
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that Donald Trump got
elected as the president
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and so, therefore,
when he became president,
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he rolled out his
Supreme Court nominee
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which is Tenth
Circuit Court of Appeals Judge
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from Colorado, Neal Gorsuch,
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and what's
interesting about Neal Gorsuch
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is he is supposedly a protege
of Justice Antonin Scalia,
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which I disagree
with I'll tell you why.
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This, Neal Gorsuch
is actually very good
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for the free
exercise of religion,
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and by the way
he's a Protestant,
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he's an Episcopalian.
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Oh, that will be
a wonderful change.
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Yeah, right now we have...
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What's the
break at the moment...
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Well, when
Justice Scalia was alive,
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we had six
Catholics on the Supreme Court
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and three Jews, no Protestants.
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No Protestant.
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When Justice John Paul Stevens
retired from the Supreme Court,
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he was an Episcopalian appointed
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by Gerald Ford back in 1975,
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he became the last
Protestant on the Supreme Court.
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Now, you know,
the courts, of course,
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would come under the
constitutional mandate
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of no religious
test for public office,
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but it's a little disconcerting
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when it's so skewed away from
any sort of a cross section.
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And Justice Souter
was a Congregationalist
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from Massachusetts I believe
or New Hampshire, excuse me,
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and Sandra Day O'Connor
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who had no religious affiliation
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even though she was raised
in Catholic private schools,
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boarding schools,
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but really had no
religious affiliation growing up
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between on the border of Arizona
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and New Mexico on a ranch.
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So you have this
interesting dynamic.
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You have five
Catholics all appointed by,
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except for
Justice Sonia Sotomayor
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who President
Barack Obama appointed,
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they're all,
except for that one,
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appointed by
Republican Presidents,
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and all five of those are...
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I mean, four of the
five are conservative jurists
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on the court.
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So what you have is
Neal Gorsuch emerges
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as a proponent
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of the free
exercise of religion,
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but someone who
doesn't take kindly
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to the constitutional
separation of the church
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and state which by the way is...
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Which is better than
Justice Antonin Scalia
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who during his whole career
except for the last decision
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he made on religion,
the Abercrombie decision,
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which involved a Muslim
woman seeking to wear her scarf
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while serving as
a flight attendant
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for a major airline,
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that he ruled in
favor of the Muslim woman,
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which was a shock to everybody.
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In fact, in that ruling
he said, "Hey, you know,
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when it comes to
even hiring practices,
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when you're even in
the interview process,
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no one should be
discriminated against
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on the basis of
their religion, no one."
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What was his take on the case
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that involved the
autonomy of the churches,
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the Lutheran teacher case?
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Oh, yes, that was a nigh
to nothing decision, yes.
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He was part of that one as well,
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yes, that that was the...
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I've the
momentary lapse, I forgot.
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Yeah. Hosanna-Tabor.
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Hosanna-Tabor, yes.
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So at least he
was right on that one.
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I thought that was
close to a sweep, clean sweep.
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Yes, it was but...
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Yeah, but he wasn't the
majority opinion in that,
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was he?
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I don't... That's
what I can't remember.
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Yeah, I don't think he was.
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I thought he went along with it
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but I don't remember.
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Yeah, I don't remember
him rendering an opinion.
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But, yeah, you're right.
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He was a very polarizing figure,
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deeply held views
as a Roman Catholic,
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but he was not really
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the friend of religious liberty.
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With the peyote ruling in 1990,
with all establishment clauses,
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he was for
joining church and state,
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he was an enemy
of religious freedom
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as we know it, okay.
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I would say it.
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As a Jesuit,
Jesuit born and raised,
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went to Jesuit high
school, Catholic University,
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and later to Harvard University.
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In fact, as I mentioned
in another program in 1961,
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when he got out of
Harvard Law School,
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went to Cleveland,
his first law firm,
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and the head of the law firm
invited him over to celebrate
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and welcome him by
his colleagues and so on,
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and he pontificated
until 3:00 am in the morning
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why Sunday laws
were constitutional.
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Yeah. Okay.
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So a very storied career
and you can read all about it
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in the biography
American Original:
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The Life and Constitution
of Supreme Court Justice,
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Antonin Scalia.
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I heard him speak several times
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and one theme that was recurring
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and he would joke about
it, but it doesn't seem to me
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that the justice
should joke about the law.
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He basically was very
enamored with the old days
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when you were innocent.
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You were brought to trial,
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you were declared
innocent let go, guilty, kill.
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He didn't seem to have
an in-between and he said,
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you know, that was the
way it should be, you know,
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heavy penalty or you get let off
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but he didn't like
these gradations very much.
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Neil Gorsuch is a friend
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of the free
exercise of religious freedom
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as is Samuel Alito,
another Catholic Justice,
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as is Chief
Justice, John Roberts,
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as is Clarence
Thomas, as is Anthony Kennedy.
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So the leading Catholic justices
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are friends of the
Catholic redefinition
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of what I call the
Catholic Redefinition
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of Religious Freedom
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which includes the support
of putting religious images
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like the Ten Commandments
in the public square
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or even government funding
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of private
religious institutions.
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These are issues in
which they see no problem with.
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They don't see
where this would take us
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in terms of church and state
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especially even prophetically,
I mean, Ellen White says,
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"When you start
funding the church,
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you're basically allowing
for the control of the church
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over the state,
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not that you can't or
church can't receive gifts
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from the
government, but one time gift...
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It's an entanglement.
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Is different from ongoing
dependent support on Federal
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and State funding.
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That's the problem. Yeah.
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Even as you are outlining that
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and talking about
religious symbolism,
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it put a new meaning
on what the court has long
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since said that
some of these things
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they've said are
ceremonial deism,
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but when you got a
majority of the court
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Roman Catholic, ceremonial deism
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is what the church is all about,
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ceremony and the symbols
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and, and maybe
there is a blind sidedness
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that's coming upon us.
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And Neal Gorsuch, Judge
Gorsuch is also very good
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on workplace religious freedom,
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so when it comes to religious
discrimination at workplace,
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he very much sides
with people and employers
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who are overtly hostile
towards people of faith.
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So that's a good
thing so he's half better
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than Justice Antonin Scalia,
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so this idea that
we must replace someone
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just like Antonin Scalia...
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So we got off
light. We got off light.
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Not only that, but he's
not a ultimate determiner
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of how the court will go
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because you still
have Justice Kennedy
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as the swing vote
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and so the
dynamic doesn't change any
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because all you're doing is
filling Justice Scalia's seat
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which keeps it as
a five-four majority
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one way or the other.
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And for all the heat and
light that goes into this topic,
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I haven't seen a
very clear correspondence
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between why someone's put their
in the factions expectations
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on how they perform.
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No one really knows
till these guys sit there
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and there are many cases
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where they seem
to take another tack.
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Well, yes and no, it depends.
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With Justice
Souter, David Souter,
00:10:19.98\00:10:22.98
there was no opinions out there.
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I mean, he pretty much sat
silent on his Federal court
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and basically
didn't hardly say anything.
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And so things
didn't change very much.
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So they didn't have much of a...
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I was surprised where he...
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what circuit was he on?
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The Tenth Circuit.
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Yeah and he had like
25,000 constituents there.
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It was a little, like
a little country side.
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Yeah, well, it's
the wild, wild west.
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So the dynamic is going to be
much different dealing with...
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Sure, he had Wyoming, Nebraska,
the Dakotas, something...
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Yeah, approach
it very differently
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as a Supreme Court Justice.
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Right, yes.
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Well maybe, I'm not as
hopeful as you are that way.
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But this guy seems
pretty tried and true
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to reaffirm his convictions.
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But one thing that I think
we need to remind ourselves
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even though some
horrible things happened,
00:11:12.13\00:11:14.67
you know, school busing change,
it wasn't horrible necessarily
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but I mean it
changed the whole country,
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convulse everyone the...
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What's the famous Dred
Scott decision, and of course,
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the peyote case,
the Supreme Court
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and not to mention
the abortion case...
00:11:29.32\00:11:35.29
Roe v Wade. Roe v Wade.
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That said, I don't
really buy into the idea
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that the Supreme
Court or a legislative body.
00:11:40.26\00:11:43.70
No, I don't either
and the reason being...
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In fact, they
aren't legislative.
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And then proof of that and
I shared this in my sermons
00:11:46.47\00:11:49.70
is you have to understand
there's nine individuals
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on the court
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and sure one person
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may have a particular viewpoint,
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but that's not the point.
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There's nine of them
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and they coalesce
and come together,
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so it makes up a certain vote,
and so when the court speaks,
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it's not just a
particular view of one person,
00:12:05.29\00:12:08.86
it's all of their
views coming together
00:12:08.89\00:12:12.29
and proof of that is
sometimes a majority's decision
00:12:12.33\00:12:16.97
will be rendered
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but it will be, sometimes,
00:12:18.37\00:12:20.60
it won't even receive
a plurality of the court,
00:12:20.64\00:12:23.27
or it will be someone
writing a concurring opinion,
00:12:23.30\00:12:27.88
separate concurring opinion
00:12:27.91\00:12:29.61
which Sandra Day
O'Connor was very famous for.
00:12:29.64\00:12:32.71
I did my 402-page
thesis/dissertation
00:12:32.75\00:12:36.52
at the J.M. Dawson Institute
of Church-State Studies
00:12:36.55\00:12:39.05
at Baylor University
on her judicial philosophy
00:12:39.09\00:12:42.19
on the role of
religion in public life,
00:12:42.22\00:12:44.23
and one of the things I
discovered about her was
00:12:44.26\00:12:47.06
that she was constantly either
00:12:47.10\00:12:51.00
ruling in favor of
the majority opinion
00:12:51.03\00:12:53.80
or concurring with it
00:12:53.84\00:12:55.17
or going ahead
ruling in favor of it,
00:12:55.20\00:12:57.81
but in her
concurring opinion saying,
00:12:57.84\00:13:00.11
"Okay, I've ruled in
favor of because of this
00:13:00.14\00:13:03.01
but here's why I
dissent with most of it."
00:13:03.04\00:13:06.38
And she did that a
lot and a lot of judges
00:13:06.41\00:13:09.75
have taken up her
example that, that was not,
00:13:09.78\00:13:13.02
that was unheard of
back in the old days
00:13:13.05\00:13:15.42
but they have
followed her example
00:13:15.46\00:13:18.99
and more and more
judges are doing just that.
00:13:19.03\00:13:22.66
Let's take a break there
for a bit and we'll be back.
00:13:22.70\00:13:26.13
Please come back with us
00:13:26.17\00:13:27.50
and we'll talk a little bit more
00:13:27.54\00:13:28.87
about the Supreme Court:
00:13:28.90\00:13:30.24
Where it's
going, where it is now,
00:13:30.27\00:13:31.61
and what you can expect.
00:13:31.64\00:13:32.97