Welcome to the Liberty Insider.
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This is your program
bringing religious liberty
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in a way that will
grab your interest,
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talking about
current and historic
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aspects of religious liberty,
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U.S. and international.
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My name, Lincoln Steed,
Editor of Liberty magazine
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and my guest, Nic
Miller, Nicholas Miller,
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professor, author, attorney.
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So, this is the
book we're talking about,
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it's 500 Years of
Protest and Liberty,
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Martin Luther to
modern civil rights.
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And we've been progressing
through the centuries.
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Five hundred years since
the Protestant Reformation,
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we've looked at the
16th, 17th, 18th, 19th
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and we just came to the
end of the 20th century.
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And today we're going to
talk about the end of the 20th
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and the beginning of the 21st.
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You can get the
book at Liberty500.com.
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You get a free subscription
to the iconic leading journal
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of church and
state Liberty Magazine
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which Lincoln, of
course, is the editor of.
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So we want you to read the book
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and to be familiar
with Liberty Magazine.
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Just because you
watch this program
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doesn't mean you're
aboard for the whole ride.
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There's a great
magazine behind it
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and this book is encapsulating
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just so much of the
whole stream of history
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since Martin
Luther to the present.
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And it is the story
of freedom, isn't it?
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It is, indeed.
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Martin Luther's
priesthood of believers,
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the right of judgment in
matters of religion means
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that the state needs to stay out
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of your Bible study effectively.
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And yet it can bring
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civil morality and
justice to society.
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And the 20th century
illustrated that story
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with Martin Luther to
Martin Luther King Jr.
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But we were coming to
the end of the 20th century.
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There had been a rise
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in the protections
of religious freedom
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but in the 1980s and early 1990s
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that began to change.
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There were some appointments
to the Supreme Court
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under President Ronald Reagan
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that shifted the court
in a rightward direction.
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A number of Catholics
were added to the court
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including one, Antonin...
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Antonin Scalia.
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That's right.
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The Late Antonin Scalia...
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The Late Antonin Scalia.
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I heard him speak in public,
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you know, in real
life a couple of times.
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He was captivating and
scary at the same time.
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So people are
confused by him a bit
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because he's known
as quite a religious man
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and he has deeply
religious convictions,
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strong Catholic,
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but his strong Catholic views
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made him believe
that religious freedom
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shouldn't be
protected in the courts
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by the Bill of Rights,
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but should be protected in
the general political process.
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Well, if you're a Catholic
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representing about a quarter
of the American population,
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that's okay,
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because the legislature
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is probably going to
remember your rights.
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But...
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I think in a way he was in love
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with the old days of the
noose and the guillotine.
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Well, that may
be a little extreme,
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I don't really mean
by that. No, I heard him.
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But he said,
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he says, "You
don't have to worry
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about my views are constrained
by the Constitution."
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And the reason I would say
that he was in love with it,
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he was an originalist
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and he knew as anyone
that reads the history
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what happened originally.
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And so he claimed
that some of the problems
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like even the residual
attitudes that inform slavery
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even though we dealt
with that in the amendment,
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some of the
assumptions about freedom
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is still free
floating in the Constitution
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and he said,
"Change the Constitution."
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And you and I know
that Seventh-day Adventists
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and some other groups
have been suspicious of that.
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Quickly going with the
Constitutional amendment
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or Constitutional, what is that?
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Convention... Convention, yeah.
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Constitutional convention,
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we don't want to dabble with it,
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but he was, sort of, caught
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and sometimes he
played a double game
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because originalism often
meant what he said it meant.
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That's right.
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And his view...
His view is dogmatic.
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His view of originalism was,
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kind of, Majoritarianism
in some instances
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that the majority
should be able to decide
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what religions to
protect and how to protect them,
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which again if you're a Catholic
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or a mainstream Protestant,
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it's probably going to be okay.
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But if you're a minority group,
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whether it be a
Seventh-day Adventist,
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a Mormon, Jehovah's Witnesses,
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maybe even a Baptist in
some parts of the country,
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you're going to have trouble.
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And his philosophy
took on concrete shape
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in the 1990 case of Employment
Division versus Smith...
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Peyote case.
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Which involved Native
American religious ceremonies,
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the use of peyote in
their religious ceremonies
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which is a
hallucinogenic mushroom.
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And while we may find
that a little bit shocking
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if you, you can analogize it
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to the use of
alcohol in the Catholic mass.
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And alcohol has far more
negative social externalities
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than is recorded
for peyote but...
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By the way there's
a papal dispensation
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for alcoholic priest
in order to use alcohol...
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Is that right, they can use
grape juice if they would like.
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No, not if they would
like, if they were alcoholic.
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Oh, I see.
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So but the point is
that under this model,
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if laws are neutral
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and don't
specifically target a religion,
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Justice Scalia said,
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"The First Amendment
doesn't protect them."
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Now this was a radical change
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because prior to that
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everyone's beliefs and
practices were protected.
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Not absolutely,
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you can't go
around stealing things
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or killing people
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because your
religion tells you to.
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But if the state
was going to interfere
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with your religious conduct,
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it had to do it in a way
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that protected
compelling state interests
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the life, liberty, property,
rights of somebody else.
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And they did it in a manner
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that was now really tailored
to advance those interests.
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But that test was now gone
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and the civil rights community
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and the
religious community reacted
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and they saw this was deeply
troubling to religious freedom
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and they got together
from the left the ACLU,
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People for the
American way to the right,
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the ECLJ, The Religious Right
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and everyone in between
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including the
Seventh-day Adventists
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and the Mormons and
the Jehovah's Witnesses...
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Building to the
Religious Freedom Restoration...
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The Religious Freedom
Restoration Act of 1993
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where we passed
a law in Congress
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saying religious freedom
for all should be protected
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even if the law is
neutral on its face.
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And yet that bill
has come so full circle
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that just before the election
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the now vice president
lay out in his state the...
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I think he'd even passed a
version of the referral bill
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that had add on amendments
that actually narrowed it,
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where a narrow
religious interest could be used
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to be upheld at the
expense of regular civil rights.
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Well, the federal Religious
Freedom Restoration Act
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didn't even last that long.
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No, it only applies
to federal employees.
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It only applies
to federal employees
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because it was passed in '93
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but by 1997, it had
been challenged in court
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and it came before
the Supreme Court again.
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And this time
Justice Scalia who'd said,
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"If you want
religious freedom protected,
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go to the legislature,"
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Now show that,
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perhaps, he wasn't
entirely sincere about that
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because when it came back
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in the form that
legislature had passed it,
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he voted to knock it down again.
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So in 1997 we were
back to the drawing board.
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Now this, the story becomes
a little personal for me here
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because in 1997 I
went to work in Washington
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for a First
Amendment advocacy group...
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You appeared in the
Supreme Court, didn't you?
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I appeared
before the Supreme Court
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and helped argue a case there.
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And I also helped then
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in trying to
create new legislation
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to replace the Religious
Freedom Restoration Act
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which had been declared
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unconstitutional
as to the States.
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So we gathered together
with this whole coalition
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from the ACLU
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and People for the American Way
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to the ACLJ in a religious right
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and everyone in between.
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And we said, "What can
we do to replace this?"
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Well, it was about six
months into this process
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that the new modern landscape
of civil rights began to emerge
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because what happened
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was the left wing groups decided
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that protecting
religious freedom
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was too dangerous
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because their new
civil rights priorities
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were LGBT and gay rights.
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In overnight, the
coalition fractured
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with the left and the
right wings falling apart.
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And we realized as a group,
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we can only pass a bill
that would be very narrow
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something
everyone would agree on
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and that didn't
threatened gay rights.
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And thus was born
the Religious Land Use
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and
Institutionalized Persons Act...
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Which I think has
been very effective
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for its
narrower purpose as well.
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It's been a good bill
and we passed that in 2000,
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President Bill
Clinton signed it.
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And it restored
religious freedom
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to your property use
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and to inmates or
people in public hospitals.
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Now that's a good thing
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but it's kind of a sad thing
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that we can't actually
have a general protection
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of religious
freedom for everyone.
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I know and then the other
part of doing it bit by bit
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was the Workplace
Religious Freedom Act,
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and that's
languishing for the same reason
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hasn't been able to pass.
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And we haven't been able to pass
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the Workplace
Religious Freedom Act.
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No real light at
the end of that tunnel.
00:09:34.17\00:09:36.44
But what it did
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was it showed
that we were emerging
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into a new really
post Protestant America
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where you couldn't...
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if you wanted to pass
the First Amendment today,
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you could no longer do it.
00:09:48.75\00:09:50.29
America is too divided.
00:09:50.32\00:09:52.22
And even among many Protestants
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separation of church and state
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which is a term
not in the Constitution
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as they keep telling you,
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is not held in high regard
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even though it's thoroughly
Constitutional principle.
00:10:02.96\00:10:06.97
And what I characterize that
00:10:07.00\00:10:08.80
and I'd like to
see what you say.
00:10:08.84\00:10:10.31
We have entered a period
00:10:10.34\00:10:11.97
not so much of
generalized religious liberty
00:10:12.01\00:10:14.14
but of religious entitlement
00:10:14.18\00:10:17.35
and narrow caveat for my right.
00:10:17.38\00:10:21.02
And in my view
the Hobby Lobby case
00:10:21.05\00:10:25.45
fits that bill perfectly.
00:10:25.49\00:10:27.06
Well, what we have is
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we have two absolutist positions
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vying for each other.
00:10:30.89\00:10:32.23
It used to be in the
past that judges would say,
00:10:32.26\00:10:34.76
we have several rights
that we need to balance
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and hold in tension.
00:10:37.60\00:10:39.53
And the religious folk
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want to have their
rights always prevailed,
00:10:41.60\00:10:44.64
and the secular folks
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want to have
theirs always prevailed.
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Well, what that means is
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if you win the election
00:10:49.81\00:10:51.78
and you get to
have your legislature
00:10:51.81\00:10:53.98
and appoint your judges,
00:10:54.02\00:10:55.35
you're going to
pound the other side.
00:10:55.38\00:10:56.72
But what happens
00:10:56.75\00:10:58.09
when the other
side wins the election?
00:10:58.12\00:10:59.45
See this is the problem.
00:10:59.49\00:11:00.82
On the Obama years,
00:11:00.86\00:11:02.19
the Obama administration
00:11:02.22\00:11:03.56
began to impose an absolutist,
00:11:03.59\00:11:05.86
kind of secular sexual outlook.
00:11:05.89\00:11:08.56
But they didn't
calculate what would happen
00:11:08.60\00:11:10.77
if the
Republicans took back over.
00:11:10.80\00:11:13.17
And then you have
the election of 2016
00:11:13.20\00:11:15.37
and who wins?
00:11:15.40\00:11:16.74
Donald Trump
and the Republicans.
00:11:16.77\00:11:18.34
And now you have
a legal framework
00:11:18.37\00:11:20.91
where you have
very little protection
00:11:20.94\00:11:23.18
in a balancing sort of situation
00:11:23.21\00:11:25.01
and it's winner take all.
00:11:25.05\00:11:27.15
And I fear we're going to see
00:11:27.18\00:11:28.58
the pendulum swing the other way
00:11:28.62\00:11:30.99
and where religious
freedom has been threatened
00:11:31.02\00:11:33.29
by LGBT and other rights.
00:11:33.32\00:11:35.42
I think you're going
to find religious freedom
00:11:35.46\00:11:38.16
and more general human rights
00:11:38.19\00:11:41.06
perhaps being threatened
00:11:41.10\00:11:42.43
by religious
special interest groups.
00:11:42.46\00:11:44.57
And that's a little bit
of a prophecy but we see...
00:11:44.60\00:11:46.60
Yeah, I agree with you.
00:11:46.63\00:11:48.34
So some forms of
religious expression
00:11:48.37\00:11:50.61
will never have it
better than in the near future.
00:11:50.64\00:11:54.34
But on the fringes they might...
00:11:54.38\00:11:56.81
If you're a minority group,
00:11:56.85\00:11:58.45
you're back to
the Scalia philosophy
00:11:58.48\00:12:01.02
of the Majoritarian
interests well controlled.
00:12:01.05\00:12:04.09
But you did mention
the Hobby Lobby case in...
00:12:04.12\00:12:05.92
Yeah, I was baiting you.
00:12:05.95\00:12:07.39
Get you to elaborate.
00:12:07.42\00:12:08.76
We have perhaps a
different view on this.
00:12:08.79\00:12:10.36
I wrote a couple
of articles for you
00:12:10.39\00:12:12.03
that appear in
this book on that.
00:12:12.06\00:12:13.90
Just a refresher for
those that may not remember
00:12:13.93\00:12:16.06
Hobby Lobby involved
the Affordable Care Act,
00:12:16.10\00:12:19.93
the Obama care as
it's popularly known,
00:12:19.97\00:12:22.00
and the
requirement that employers
00:12:22.04\00:12:23.84
provide both
insurance and services
00:12:23.87\00:12:26.04
that include certain
forms of birth control.
00:12:26.07\00:12:28.91
And there were some Catholic
and Protestant businesses
00:12:28.94\00:12:32.11
that objected to certain parts
00:12:32.15\00:12:33.98
of that birth
control requirement.
00:12:34.02\00:12:36.82
Contraceptives that use
00:12:36.85\00:12:38.72
what could be
termed methods of abortion,
00:12:38.75\00:12:41.79
the day after
pill or abortifacients,
00:12:41.82\00:12:44.56
and they couldn't
conscientiously support that.
00:12:44.59\00:12:47.86
So the question was,
00:12:47.90\00:12:49.23
should the religious consciences
00:12:49.26\00:12:51.07
of these corporations,
00:12:51.10\00:12:52.77
because Hobby
Lobby was a corporation,
00:12:52.80\00:12:54.37
be protected
00:12:54.40\00:12:55.74
or should the
health care benefits
00:12:55.77\00:12:59.17
for the employees be protected.
00:12:59.21\00:13:01.18
And you had a
certain view on this.
00:13:01.21\00:13:02.84
Maybe you can remind us.
00:13:02.88\00:13:04.21
I have a religious viewpoint
00:13:04.25\00:13:05.58
deprived
someone who didn't share
00:13:05.61\00:13:07.28
that religious viewpoint
00:13:07.32\00:13:08.88
of a generally
applicable benefit.
00:13:08.92\00:13:11.82
Well, if that were
the case I would...
00:13:11.85\00:13:13.19
And what's further,
00:13:13.22\00:13:15.02
just because the
insurance includes
00:13:15.06\00:13:17.33
it doesn't mean
whatsoever that the employee
00:13:17.36\00:13:19.53
is going to use it.
00:13:19.56\00:13:22.00
So it's totally
theoretical on two levels.
00:13:22.03\00:13:24.27
But you have to assume
00:13:24.30\00:13:25.63
they're probably going to use...
00:13:25.67\00:13:27.00
someone is going to assume
what you're providing them.
00:13:27.04\00:13:28.57
Like it would be very easy
00:13:28.60\00:13:30.74
for an employer
that had that viewpoint
00:13:30.77\00:13:34.64
supporting that insurance
00:13:34.68\00:13:36.31
that if they saw
that their employee
00:13:36.34\00:13:39.08
had an abortion or whatever
00:13:39.11\00:13:40.45
then there's other
avenues of reaction...
00:13:40.48\00:13:44.39
That's punishing
someone for a sin
00:13:44.42\00:13:47.26
that they might commit
00:13:47.29\00:13:48.62
even if you allow
through the system.
00:13:48.66\00:13:49.99
I'm not sure.
Have you read the case?
00:13:50.03\00:13:51.96
I've read not about
the case... About the case.
00:13:51.99\00:13:54.20
But I've read a
lot of legal articles.
00:13:54.23\00:13:56.87
Well, it's very important
00:13:56.90\00:13:58.40
because Justice A
Kennedy wrote the fifth vote
00:13:58.43\00:14:02.24
and so his decision was
controlling on this issue
00:14:02.27\00:14:04.54
which said that if the
employee had the access
00:14:04.57\00:14:09.34
that the government was
going to provide these services,
00:14:09.38\00:14:12.91
if the employer
couldn't or wouldn't.
00:14:12.95\00:14:15.28
And so it was very clear
that it wasn't a tradeoff
00:14:15.32\00:14:17.92
between medical care and rights.
00:14:17.95\00:14:20.02
It was who was
going to pay for it.
00:14:20.06\00:14:22.26
Yes, I know that
paying was a lot of it.
00:14:22.29\00:14:24.03
And unfortunately
the way it devolves
00:14:24.06\00:14:25.73
that the general
community are going to pay
00:14:25.76\00:14:28.80
instead of the employer.
00:14:28.83\00:14:30.77
We'll be back
after a short break,
00:14:30.80\00:14:32.33
stay with us.
00:14:32.37\00:14:33.70