Participants: Lincoln Steed (Host), Greg Hamilton
Series Code: LI
Program Code: LI000363A
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00:25 Welcome to the Liberty Insider.
00:27 This is a program bringing you up-to-date information 00:30 and analysis on points of history 00:33 that bear on religious liberty. 00:36 My name is Lincoln Steed, I'm editor of Liberty magazine 00:39 and my guest on the program is Greg Hamilton... 00:42 How're you doing? 00:43 President of the Northwest Religious Liberty Association, 00:46 and a great scholar of American history. 00:49 I try. 00:51 Yeah, and you try very well and from time to time 00:54 you've written articles in Liberty magazine 00:56 that continue our emphasis on history 00:59 which is one theme of biblical religious liberty base 01:04 and constitutional. 01:07 Let's talk about recent American history 01:10 and I'm trying to think how to describe it. 01:12 Let's talk about the supremes and not the musical group 01:16 that I remember real well, you know, I hear a symphony, 01:19 but it's not always a symphony 01:20 coming out of the Supreme Court, is it? 01:22 No, there isn't, and with the death of Antonin Scalia 01:26 on the Supreme Court that created this big hole. 01:29 In fact, it was so controversial that 01:32 when President Barack Obama appointed 01:35 or nominated Merrick Garland 01:39 to be the next Justice of the Supreme Court, 01:42 he wasn't even seen by Senate 01:45 and House leaders on the Republican side 01:49 and thus it totally squelched his nomination 01:52 until the emergence of the next president, 01:55 which everybody assumed, a lot of people assumed, 01:59 that it would be Hillary Clinton, 02:00 even Donald Trump was surprised 02:01 that he was elected to be honest. 02:03 I guess the Republicans didn't 02:04 because they wouldn't have blocked it otherwise. 02:07 Well, no they were hopeful. 02:08 They were just being hopeful, they assumed that 02:10 if they did block it for now 02:12 that when if Hillary Clinton emerged 02:15 that they would get Merrick Garland 02:17 and that he was a center-right justice 02:19 and they would get what they wanted anyway, 02:22 and so their gamble was a pretty safe gambit 02:25 for the most part, 02:27 so they were just kind of holding him off 02:29 until the inevitable. 02:31 Well, guess what? 02:32 Everybody was shocked, it was an earthquake 02:34 that Donald Trump got elected as the president 02:36 and so, therefore, when he became president, 02:40 he rolled out his Supreme Court nominee 02:43 which is Tenth Circuit Court of Appeals Judge 02:47 from Colorado, Neal Gorsuch, 02:50 and what's interesting about Neal Gorsuch 02:54 is he is supposedly a protege of Justice Antonin Scalia, 02:59 which I disagree with I'll tell you why. 03:03 This, Neal Gorsuch is actually very good 03:05 for the free exercise of religion, 03:06 and by the way he's a Protestant, 03:08 he's an Episcopalian. 03:09 Oh, that will be a wonderful change. 03:11 Yeah, right now we have... 03:12 What's the break at the moment... 03:14 Well, when Justice Scalia was alive, 03:15 we had six Catholics on the Supreme Court 03:16 and three Jews, no Protestants. 03:18 No Protestant. 03:19 When Justice John Paul Stevens retired from the Supreme Court, 03:22 he was an Episcopalian appointed 03:23 by Gerald Ford back in 1975, 03:27 he became the last Protestant on the Supreme Court. 03:30 Now, you know, the courts, of course, 03:31 would come under the constitutional mandate 03:34 of no religious test for public office, 03:36 but it's a little disconcerting 03:38 when it's so skewed away from any sort of a cross section. 03:42 And Justice Souter was a Congregationalist 03:47 from Massachusetts I believe or New Hampshire, excuse me, 03:51 and Sandra Day O'Connor 03:53 who had no religious affiliation 03:54 even though she was raised in Catholic private schools, 03:58 boarding schools, 04:00 but really had no religious affiliation growing up 04:04 between on the border of Arizona 04:06 and New Mexico on a ranch. 04:09 So you have this interesting dynamic. 04:11 You have five Catholics all appointed by, 04:14 except for Justice Sonia Sotomayor 04:17 who President Barack Obama appointed, 04:20 they're all, except for that one, 04:23 appointed by Republican Presidents, 04:25 and all five of those are... 04:29 I mean, four of the five are conservative jurists 04:34 on the court. 04:35 So what you have is Neal Gorsuch emerges 04:39 as a proponent 04:41 of the free exercise of religion, 04:43 but someone who doesn't take kindly 04:47 to the constitutional separation of the church 04:48 and state which by the way is... 04:51 Which is better than Justice Antonin Scalia 04:54 who during his whole career except for the last decision 04:57 he made on religion, the Abercrombie decision, 05:00 which involved a Muslim woman seeking to wear her scarf 05:06 while serving as a flight attendant 05:08 for a major airline, 05:09 that he ruled in favor of the Muslim woman, 05:13 which was a shock to everybody. 05:15 In fact, in that ruling he said, "Hey, you know, 05:17 when it comes to even hiring practices, 05:19 when you're even in the interview process, 05:22 no one should be discriminated against 05:23 on the basis of their religion, no one." 05:26 What was his take on the case 05:30 that involved the autonomy of the churches, 05:32 the Lutheran teacher case? 05:35 Oh, yes, that was a nigh to nothing decision, yes. 05:37 He was part of that one as well, 05:39 yes, that that was the... 05:42 I've the momentary lapse, I forgot. 05:45 Yeah. Hosanna-Tabor. 05:47 Hosanna-Tabor, yes. 05:50 So at least he was right on that one. 05:52 I thought that was close to a sweep, clean sweep. 05:56 Yes, it was but... 05:58 Yeah, but he wasn't the majority opinion in that, 06:01 was he? 06:02 I don't... That's what I can't remember. 06:03 Yeah, I don't think he was. 06:05 I thought he went along with it 06:06 but I don't remember. 06:08 Yeah, I don't remember him rendering an opinion. 06:09 But, yeah, you're right. 06:10 He was a very polarizing figure, 06:12 deeply held views as a Roman Catholic, 06:16 but he was not really 06:18 the friend of religious liberty. 06:20 With the peyote ruling in 1990, with all establishment clauses, 06:26 he was for joining church and state, 06:28 he was an enemy of religious freedom 06:30 as we know it, okay. 06:31 I would say it. 06:33 As a Jesuit, Jesuit born and raised, 06:35 went to Jesuit high school, Catholic University, 06:38 and later to Harvard University. 06:41 In fact, as I mentioned in another program in 1961, 06:44 when he got out of Harvard Law School, 06:45 went to Cleveland, his first law firm, 06:48 and the head of the law firm invited him over to celebrate 06:52 and welcome him by his colleagues and so on, 06:55 and he pontificated until 3:00 am in the morning 06:58 why Sunday laws were constitutional. 07:00 Yeah. Okay. 07:01 So a very storied career and you can read all about it 07:05 in the biography American Original: 07:07 The Life and Constitution of Supreme Court Justice, 07:10 Antonin Scalia. 07:12 I heard him speak several times 07:13 and one theme that was recurring 07:15 and he would joke about it, but it doesn't seem to me 07:18 that the justice should joke about the law. 07:21 He basically was very enamored with the old days 07:25 when you were innocent. 07:26 You were brought to trial, 07:28 you were declared innocent let go, guilty, kill. 07:30 He didn't seem to have an in-between and he said, 07:33 you know, that was the way it should be, you know, 07:36 heavy penalty or you get let off 07:38 but he didn't like these gradations very much. 07:40 Neil Gorsuch is a friend 07:42 of the free exercise of religious freedom 07:44 as is Samuel Alito, another Catholic Justice, 07:47 as is Chief Justice, John Roberts, 07:49 as is Clarence Thomas, as is Anthony Kennedy. 07:52 So the leading Catholic justices 07:55 are friends of the Catholic redefinition 07:58 of what I call the Catholic Redefinition 08:00 of Religious Freedom 08:01 which includes the support of putting religious images 08:06 like the Ten Commandments in the public square 08:08 or even government funding 08:11 of private religious institutions. 08:13 These are issues in which they see no problem with. 08:16 They don't see where this would take us 08:19 in terms of church and state 08:21 especially even prophetically, I mean, Ellen White says, 08:23 "When you start funding the church, 08:27 you're basically allowing for the control of the church 08:29 over the state, 08:30 not that you can't or church can't receive gifts 08:33 from the government, but one time gift... 08:36 It's an entanglement. 08:37 Is different from ongoing dependent support on Federal 08:44 and State funding. 08:45 That's the problem. Yeah. 08:47 Even as you are outlining that 08:49 and talking about religious symbolism, 08:52 it put a new meaning on what the court has long 08:54 since said that some of these things 08:56 they've said are ceremonial deism, 08:58 but when you got a majority of the court 08:59 Roman Catholic, ceremonial deism 09:02 is what the church is all about, 09:04 ceremony and the symbols 09:06 and, and maybe there is a blind sidedness 09:11 that's coming upon us. 09:13 And Neal Gorsuch, Judge Gorsuch is also very good 09:15 on workplace religious freedom, 09:17 so when it comes to religious discrimination at workplace, 09:20 he very much sides with people and employers 09:25 who are overtly hostile towards people of faith. 09:27 So that's a good thing so he's half better 09:32 than Justice Antonin Scalia, 09:34 so this idea that we must replace someone 09:37 just like Antonin Scalia... 09:38 So we got off light. We got off light. 09:40 Not only that, but he's not a ultimate determiner 09:43 of how the court will go 09:44 because you still have Justice Kennedy 09:46 as the swing vote 09:48 and so the dynamic doesn't change any 09:50 because all you're doing is filling Justice Scalia's seat 09:54 which keeps it as a five-four majority 09:57 one way or the other. 09:59 And for all the heat and light that goes into this topic, 10:02 I haven't seen a very clear correspondence 10:04 between why someone's put their in the factions expectations 10:08 on how they perform. 10:10 No one really knows till these guys sit there 10:13 and there are many cases 10:15 where they seem to take another tack. 10:18 Well, yes and no, it depends. 10:19 With Justice Souter, David Souter, 10:23 there was no opinions out there. 10:24 I mean, he pretty much sat silent on his Federal court 10:28 and basically didn't hardly say anything. 10:30 And so things didn't change very much. 10:32 So they didn't have much of a... 10:34 I was surprised where he... 10:36 what circuit was he on? 10:37 The Tenth Circuit. 10:39 Yeah and he had like 25,000 constituents there. 10:44 It was a little, like a little country side. 10:45 Yeah, well, it's the wild, wild west. 10:48 So the dynamic is going to be much different dealing with... 10:51 Sure, he had Wyoming, Nebraska, the Dakotas, something... 10:54 Yeah, approach it very differently 10:57 as a Supreme Court Justice. 10:59 Right, yes. 11:00 Well maybe, I'm not as hopeful as you are that way. 11:05 But this guy seems pretty tried and true 11:07 to reaffirm his convictions. 11:08 But one thing that I think we need to remind ourselves 11:12 even though some horrible things happened, 11:14 you know, school busing change, it wasn't horrible necessarily 11:19 but I mean it changed the whole country, 11:22 convulse everyone the... 11:24 What's the famous Dred Scott decision, and of course, 11:27 the peyote case, the Supreme Court 11:29 and not to mention the abortion case... 11:35 Roe v Wade. Roe v Wade. 11:37 That said, I don't really buy into the idea 11:40 that the Supreme Court or a legislative body. 11:43 No, I don't either and the reason being... 11:45 In fact, they aren't legislative. 11:46 And then proof of that and I shared this in my sermons 11:49 is you have to understand there's nine individuals 11:52 on the court 11:54 and sure one person 11:55 may have a particular viewpoint, 11:57 but that's not the point. 11:58 There's nine of them 11:59 and they coalesce and come together, 12:01 so it makes up a certain vote, and so when the court speaks, 12:05 it's not just a particular view of one person, 12:08 it's all of their views coming together 12:12 and proof of that is sometimes a majority's decision 12:17 will be rendered 12:18 but it will be, sometimes, 12:20 it won't even receive a plurality of the court, 12:23 or it will be someone writing a concurring opinion, 12:27 separate concurring opinion 12:29 which Sandra Day O'Connor was very famous for. 12:32 I did my 402-page thesis/dissertation 12:36 at the J.M. Dawson Institute of Church-State Studies 12:39 at Baylor University on her judicial philosophy 12:42 on the role of religion in public life, 12:44 and one of the things I discovered about her was 12:47 that she was constantly either 12:51 ruling in favor of the majority opinion 12:53 or concurring with it 12:55 or going ahead ruling in favor of it, 12:57 but in her concurring opinion saying, 13:00 "Okay, I've ruled in favor of because of this 13:03 but here's why I dissent with most of it." 13:06 And she did that a lot and a lot of judges 13:09 have taken up her example that, that was not, 13:13 that was unheard of back in the old days 13:15 but they have followed her example 13:19 and more and more judges are doing just that. 13:22 Let's take a break there for a bit and we'll be back. 13:26 Please come back with us 13:27 and we'll talk a little bit more 13:28 about the Supreme Court: 13:30 Where it's going, where it is now, 13:31 and what you can expect. |
Revised 2017-05-01