Participants: Lincoln Steed (Host), Nick Miller
Series Code: LI
Program Code: LI000370A
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00:25 Welcome to the Liberty Insider.
00:27 This is your program bringing religious liberty 00:30 in a way that will grab your interest, 00:31 talking about current and historic 00:34 aspects of religious liberty, 00:36 U.S. and international. 00:37 My name, Lincoln Steed, Editor of Liberty magazine 00:40 and my guest, Nic Miller, Nicholas Miller, 00:43 professor, author, attorney. 00:48 So, this is the book we're talking about, 00:51 it's 500 Years of Protest and Liberty, 00:54 Martin Luther to modern civil rights. 00:57 And we've been progressing through the centuries. 01:00 Five hundred years since the Protestant Reformation, 01:02 we've looked at the 16th, 17th, 18th, 19th 01:06 and we just came to the end of the 20th century. 01:08 And today we're going to talk about the end of the 20th 01:10 and the beginning of the 21st. 01:12 You can get the book at Liberty500.com. 01:15 You get a free subscription to the iconic leading journal 01:20 of church and state Liberty Magazine 01:22 which Lincoln, of course, is the editor of. 01:25 So we want you to read the book 01:28 and to be familiar with Liberty Magazine. 01:30 Just because you watch this program 01:32 doesn't mean you're aboard for the whole ride. 01:34 There's a great magazine behind it 01:36 and this book is encapsulating 01:38 just so much of the whole stream of history 01:41 since Martin Luther to the present. 01:43 And it is the story of freedom, isn't it? 01:45 It is, indeed. 01:46 Martin Luther's priesthood of believers, 01:48 the right of judgment in matters of religion means 01:51 that the state needs to stay out 01:53 of your Bible study effectively. 01:55 And yet it can bring 01:57 civil morality and justice to society. 02:00 And the 20th century illustrated that story 02:02 with Martin Luther to Martin Luther King Jr. 02:05 But we were coming to the end of the 20th century. 02:07 There had been a rise 02:09 in the protections of religious freedom 02:10 but in the 1980s and early 1990s 02:12 that began to change. 02:14 There were some appointments to the Supreme Court 02:16 under President Ronald Reagan 02:18 that shifted the court in a rightward direction. 02:21 A number of Catholics were added to the court 02:23 including one, Antonin... 02:24 Antonin Scalia. 02:26 That's right. 02:28 The Late Antonin Scalia... 02:29 The Late Antonin Scalia. 02:30 I heard him speak in public, 02:32 you know, in real life a couple of times. 02:33 He was captivating and scary at the same time. 02:36 So people are confused by him a bit 02:38 because he's known as quite a religious man 02:40 and he has deeply religious convictions, 02:43 strong Catholic, 02:45 but his strong Catholic views 02:47 made him believe that religious freedom 02:49 shouldn't be protected in the courts 02:51 by the Bill of Rights, 02:52 but should be protected in the general political process. 02:56 Well, if you're a Catholic 02:58 representing about a quarter of the American population, 03:01 that's okay, 03:02 because the legislature 03:03 is probably going to remember your rights. 03:05 But... 03:07 I think in a way he was in love 03:08 with the old days of the noose and the guillotine. 03:13 Well, that may be a little extreme, 03:15 I don't really mean by that. No, I heard him. 03:18 But he said, 03:19 he says, "You don't have to worry 03:20 about my views are constrained by the Constitution." 03:25 And the reason I would say that he was in love with it, 03:28 he was an originalist 03:29 and he knew as anyone that reads the history 03:32 what happened originally. 03:34 And so he claimed that some of the problems 03:38 like even the residual attitudes that inform slavery 03:40 even though we dealt with that in the amendment, 03:45 some of the assumptions about freedom 03:47 is still free floating in the Constitution 03:49 and he said, "Change the Constitution." 03:52 And you and I know that Seventh-day Adventists 03:54 and some other groups have been suspicious of that. 03:57 Quickly going with the Constitutional amendment 03:59 or Constitutional, what is that? 04:02 Convention... Convention, yeah. 04:04 Constitutional convention, 04:05 we don't want to dabble with it, 04:07 but he was, sort of, caught 04:09 and sometimes he played a double game 04:12 because originalism often meant what he said it meant. 04:16 That's right. 04:17 And his view... His view is dogmatic. 04:19 His view of originalism was, 04:23 kind of, Majoritarianism in some instances 04:26 that the majority should be able to decide 04:27 what religions to protect and how to protect them, 04:30 which again if you're a Catholic 04:32 or a mainstream Protestant, 04:33 it's probably going to be okay. 04:34 But if you're a minority group, 04:36 whether it be a Seventh-day Adventist, 04:37 a Mormon, Jehovah's Witnesses, 04:39 maybe even a Baptist in some parts of the country, 04:42 you're going to have trouble. 04:43 And his philosophy took on concrete shape 04:46 in the 1990 case of Employment Division versus Smith... 04:50 Peyote case. 04:51 Which involved Native American religious ceremonies, 04:54 the use of peyote in their religious ceremonies 04:57 which is a hallucinogenic mushroom. 05:00 And while we may find that a little bit shocking 05:03 if you, you can analogize it 05:05 to the use of alcohol in the Catholic mass. 05:09 And alcohol has far more negative social externalities 05:13 than is recorded for peyote but... 05:17 By the way there's a papal dispensation 05:19 for alcoholic priest in order to use alcohol... 05:22 Is that right, they can use grape juice if they would like. 05:24 No, not if they would like, if they were alcoholic. 05:26 Oh, I see. 05:28 So but the point is that under this model, 05:31 if laws are neutral 05:33 and don't specifically target a religion, 05:36 Justice Scalia said, 05:37 "The First Amendment doesn't protect them." 05:39 Now this was a radical change 05:41 because prior to that 05:42 everyone's beliefs and practices were protected. 05:45 Not absolutely, 05:46 you can't go around stealing things 05:48 or killing people 05:49 because your religion tells you to. 05:50 But if the state was going to interfere 05:52 with your religious conduct, 05:54 it had to do it in a way 05:55 that protected compelling state interests 05:58 the life, liberty, property, rights of somebody else. 06:01 And they did it in a manner 06:02 that was now really tailored to advance those interests. 06:05 But that test was now gone 06:09 and the civil rights community 06:10 and the religious community reacted 06:12 and they saw this was deeply troubling to religious freedom 06:15 and they got together from the left the ACLU, 06:18 People for the American way to the right, 06:21 the ECLJ, The Religious Right 06:23 and everyone in between 06:25 including the Seventh-day Adventists 06:26 and the Mormons and the Jehovah's Witnesses... 06:27 Building to the Religious Freedom Restoration... 06:29 The Religious Freedom Restoration Act of 1993 06:32 where we passed a law in Congress 06:35 saying religious freedom for all should be protected 06:38 even if the law is neutral on its face. 06:41 And yet that bill has come so full circle 06:44 that just before the election 06:45 the now vice president lay out in his state the... 06:52 I think he'd even passed a version of the referral bill 06:57 that had add on amendments that actually narrowed it, 07:00 where a narrow religious interest could be used 07:04 to be upheld at the expense of regular civil rights. 07:07 Well, the federal Religious Freedom Restoration Act 07:11 didn't even last that long. 07:13 No, it only applies to federal employees. 07:14 It only applies to federal employees 07:16 because it was passed in '93 07:18 but by 1997, it had been challenged in court 07:22 and it came before the Supreme Court again. 07:24 And this time Justice Scalia who'd said, 07:26 "If you want religious freedom protected, 07:28 go to the legislature," 07:30 Now show that, 07:31 perhaps, he wasn't entirely sincere about that 07:33 because when it came back 07:34 in the form that legislature had passed it, 07:37 he voted to knock it down again. 07:39 So in 1997 we were back to the drawing board. 07:42 Now this, the story becomes a little personal for me here 07:45 because in 1997 I went to work in Washington 07:47 for a First Amendment advocacy group... 07:49 You appeared in the Supreme Court, didn't you? 07:51 I appeared before the Supreme Court 07:53 and helped argue a case there. 07:55 And I also helped then 07:56 in trying to create new legislation 07:58 to replace the Religious Freedom Restoration Act 08:02 which had been declared 08:03 unconstitutional as to the States. 08:05 So we gathered together with this whole coalition 08:07 from the ACLU 08:09 and People for the American Way 08:10 to the ACLJ in a religious right 08:12 and everyone in between. 08:13 And we said, "What can we do to replace this?" 08:16 Well, it was about six months into this process 08:19 that the new modern landscape of civil rights began to emerge 08:23 because what happened 08:24 was the left wing groups decided 08:26 that protecting religious freedom 08:27 was too dangerous 08:29 because their new civil rights priorities 08:32 were LGBT and gay rights. 08:34 In overnight, the coalition fractured 08:38 with the left and the right wings falling apart. 08:41 And we realized as a group, 08:42 we can only pass a bill that would be very narrow 08:45 something everyone would agree on 08:47 and that didn't threatened gay rights. 08:49 And thus was born the Religious Land Use 08:52 and Institutionalized Persons Act... 08:55 Which I think has been very effective 08:56 for its narrower purpose as well. 08:58 It's been a good bill and we passed that in 2000, 09:02 President Bill Clinton signed it. 09:04 And it restored religious freedom 09:07 to your property use 09:09 and to inmates or people in public hospitals. 09:14 Now that's a good thing 09:16 but it's kind of a sad thing 09:17 that we can't actually have a general protection 09:20 of religious freedom for everyone. 09:22 I know and then the other part of doing it bit by bit 09:25 was the Workplace Religious Freedom Act, 09:27 and that's languishing for the same reason 09:30 hasn't been able to pass. 09:31 And we haven't been able to pass 09:32 the Workplace Religious Freedom Act. 09:34 No real light at the end of that tunnel. 09:36 But what it did 09:37 was it showed that we were emerging 09:39 into a new really post Protestant America 09:44 where you couldn't... 09:45 if you wanted to pass the First Amendment today, 09:48 you could no longer do it. 09:50 America is too divided. 09:52 And even among many Protestants 09:55 separation of church and state 09:57 which is a term not in the Constitution 09:59 as they keep telling you, 10:01 is not held in high regard 10:02 even though it's thoroughly Constitutional principle. 10:07 And what I characterize that 10:08 and I'd like to see what you say. 10:10 We have entered a period 10:12 not so much of generalized religious liberty 10:14 but of religious entitlement 10:17 and narrow caveat for my right. 10:21 And in my view the Hobby Lobby case 10:25 fits that bill perfectly. 10:27 Well, what we have is 10:28 we have two absolutist positions 10:30 vying for each other. 10:32 It used to be in the past that judges would say, 10:34 we have several rights that we need to balance 10:37 and hold in tension. 10:39 And the religious folk 10:41 want to have their rights always prevailed, 10:44 and the secular folks 10:46 want to have theirs always prevailed. 10:47 Well, what that means is 10:49 if you win the election 10:51 and you get to have your legislature 10:54 and appoint your judges, 10:55 you're going to pound the other side. 10:56 But what happens 10:58 when the other side wins the election? 10:59 See this is the problem. 11:00 On the Obama years, 11:02 the Obama administration 11:03 began to impose an absolutist, 11:05 kind of secular sexual outlook. 11:08 But they didn't calculate what would happen 11:10 if the Republicans took back over. 11:13 And then you have the election of 2016 11:15 and who wins? 11:16 Donald Trump and the Republicans. 11:18 And now you have a legal framework 11:20 where you have very little protection 11:23 in a balancing sort of situation 11:25 and it's winner take all. 11:27 And I fear we're going to see 11:28 the pendulum swing the other way 11:31 and where religious freedom has been threatened 11:33 by LGBT and other rights. 11:35 I think you're going to find religious freedom 11:38 and more general human rights 11:41 perhaps being threatened 11:42 by religious special interest groups. 11:44 And that's a little bit of a prophecy but we see... 11:46 Yeah, I agree with you. 11:48 So some forms of religious expression 11:50 will never have it better than in the near future. 11:54 But on the fringes they might... 11:56 If you're a minority group, 11:58 you're back to the Scalia philosophy 12:01 of the Majoritarian interests well controlled. 12:04 But you did mention the Hobby Lobby case in... 12:05 Yeah, I was baiting you. 12:07 Get you to elaborate. 12:08 We have perhaps a different view on this. 12:10 I wrote a couple of articles for you 12:12 that appear in this book on that. 12:13 Just a refresher for those that may not remember 12:16 Hobby Lobby involved the Affordable Care Act, 12:19 the Obama care as it's popularly known, 12:22 and the requirement that employers 12:23 provide both insurance and services 12:26 that include certain forms of birth control. 12:28 And there were some Catholic and Protestant businesses 12:32 that objected to certain parts 12:34 of that birth control requirement. 12:36 Contraceptives that use 12:38 what could be termed methods of abortion, 12:41 the day after pill or abortifacients, 12:44 and they couldn't conscientiously support that. 12:47 So the question was, 12:49 should the religious consciences 12:51 of these corporations, 12:52 because Hobby Lobby was a corporation, 12:54 be protected 12:55 or should the health care benefits 12:59 for the employees be protected. 13:01 And you had a certain view on this. 13:02 Maybe you can remind us. 13:04 I have a religious viewpoint 13:05 deprived someone who didn't share 13:07 that religious viewpoint 13:08 of a generally applicable benefit. 13:11 Well, if that were the case I would... 13:13 And what's further, 13:15 just because the insurance includes 13:17 it doesn't mean whatsoever that the employee 13:19 is going to use it. 13:22 So it's totally theoretical on two levels. 13:24 But you have to assume 13:25 they're probably going to use... 13:27 someone is going to assume what you're providing them. 13:28 Like it would be very easy 13:30 for an employer that had that viewpoint 13:34 supporting that insurance 13:36 that if they saw that their employee 13:39 had an abortion or whatever 13:40 then there's other avenues of reaction... 13:44 That's punishing someone for a sin 13:47 that they might commit 13:48 even if you allow through the system. 13:50 I'm not sure. Have you read the case? 13:51 I've read not about the case... About the case. 13:54 But I've read a lot of legal articles. 13:56 Well, it's very important 13:58 because Justice A Kennedy wrote the fifth vote 14:02 and so his decision was controlling on this issue 14:04 which said that if the employee had the access 14:09 that the government was going to provide these services, 14:12 if the employer couldn't or wouldn't. 14:15 And so it was very clear that it wasn't a tradeoff 14:17 between medical care and rights. 14:20 It was who was going to pay for it. 14:22 Yes, I know that paying was a lot of it. 14:24 And unfortunately the way it devolves 14:25 that the general community are going to pay 14:28 instead of the employer. 14:30 We'll be back after a short break, 14:32 stay with us. |
Revised 2017-07-24