Participants:
Series Code: LI
Program Code: LI180412A
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00:29 Welcome to the Liberty Insider.
00:31 This is your program, bringing you news, 00:34 views, updates, and discussion, and analyses 00:37 of religious liberty developments 00:39 in the US and around the world. 00:41 My name is Lincoln Steed, Editor of Liberty magazine. 00:45 And my guest on the program is attorney, Alan Reinach, 00:49 Executive Director 00:50 of the Church State Council in California, 00:53 based in California. 00:55 And the fact that you're an attorney 00:56 leads directly into what I want to talk about. 00:58 Sure. 01:00 You know, the law is a big part 01:01 of our lives in the modern world. 01:05 And I'm reminded in the gospel dispensation, 01:08 you know, the Apostle Paul 01:11 changed the world on behalf of Christianity, 01:13 but he appealed to the law time after time 01:15 his citizenship status, right? 01:17 So it seems to me, 01:19 it's a legitimate aspect of living a life of faith 01:22 in the modern world that... 01:24 We use the law when we can to defend what it offers, 01:27 particularly in the United States, 01:29 protection for religious practice. 01:31 Now is this a big part or a big problem 01:35 in the United States 01:36 defending people's religious sensibilities, 01:39 probably mostly in the workplace? 01:40 You know, I don't know what most Americans think of 01:44 when they think of religious liberty problems. 01:45 Maybe they think of, 01:47 you know, the baker and the photographer, 01:49 and that sort of thing 01:51 or maybe they think of Ten Commandments monument, 01:54 and, you know, crosses on hills, 01:56 and the battles, those sorts of things. 01:59 But you know, the cases that don't get the publicity. 02:03 The number one religious freedom problem 02:06 in America today 02:08 and for many years has been every business day, 02:11 Americans are losing their jobs 02:14 for no other crime than their faith. 02:17 Now it's not just Seventh-day Adventists. 02:19 You and I are Seventh-day Adventists. 02:21 And you, I know, defend many Adventists, 02:24 but this wouldn't be just a problem of accommodation 02:28 for Adventists. 02:29 No, it's not at all. 02:31 I can think of a few others, Jews, 02:33 Muslims have faith for example. 02:34 But every... 02:36 People of any faith can suffer discrimination. 02:40 You know, it's true. 02:42 I started out primarily representing 02:45 Seventh-day Adventists 02:46 with Sabbath accommodation problems 02:48 because of our belief and practice of taking the time 02:53 from sundown Friday to sundown Saturday 02:56 is a day of rest and worship 02:58 and not working on those hours and being pretty strict about, 03:01 you know, not working, it causes a lot of conflict, 03:05 especially for blue collar-hourly-wage workers. 03:09 People can't change their job at will. 03:13 They don't have the flexibility. 03:14 But we've developed the Church State Council 03:16 into the foremost legal services organization 03:19 providing representation for people of all faiths. 03:23 So for example, let me tell you a story about a case 03:27 that was not a Seventh-day Adventist. 03:28 And I can tell it 03:30 because it was a case against a government entity, 03:33 and when you settle cases against the government, 03:36 because it's a government, 03:37 they can't have these nondisclosure agreements. 03:40 There's no confidentiality. I didn't know that. 03:43 I'm not going to use names, 03:44 you know, but at least I can talk. 03:47 So it's in the public record. 03:48 Yeah, it's a public record, sure. 03:49 So our client was a very lovely gentleman, 03:53 African-American, Baptist. 03:56 And his dad had started a church 03:58 in Oakland, California. 04:01 He had many years of federal service 04:04 in the military and otherwise, 04:07 and he decided when the real estate business 04:10 he was in collapsed back in, 04:13 you know, 2009, 2010, he took a position, 04:16 very humble position, 04:17 as a custodian for a national park 04:22 on the ocean there in San Francisco, 04:26 right by Pier 39 for those 04:28 who are familiar with the city at all. 04:31 I've been to Pier 39 myself 04:33 and I'm not familiar with the city. 04:34 He encountered not only pervasive harassment 04:38 and discrimination on the basis of race, 04:41 but then the thing that got him fired, 04:45 he had befriended one of the homeless people 04:47 that came to visit the park 04:50 and eventually the gentleman was no longer homeless. 04:55 You know, he had a place to live, 04:56 but he still came to visit the park. 04:58 And he asked my client to be baptized, 05:02 and so he got very excited, 05:06 he said, "You know, wait till the end of my shift." 05:10 And at the end of his shift... 05:12 He took his lunch break at the end 05:14 instead of during the middle, changed out of his uniform, 05:17 took him down to the ocean, baptized him. 05:21 He got fired over that. Incredible. 05:22 We had a federal agency then defending this case. 05:29 You know, they eventually settled it, 05:31 but defending it saying, 05:33 "We did nothing wrong by firing him." 05:35 They didn't deny 05:36 that he was fired over the baptism 05:38 'cause there was a whole paper trail about it. 05:40 What was the reason given for his firing though? 05:46 How did he offend the supervisor? 05:50 Look, it was probably just pure bigotry, 05:54 race and religious bigotry. 05:55 That's probably what was really going on. 05:58 They tried to defend it as somehow he would be... 06:04 People who would see him were at risk 06:08 of some kind of endorsement of religion. 06:10 Well, first of all, he's had a uniform, 06:12 so how many people are going to recognize 06:14 that he is the custodian there anyway? 06:16 And they admitted deposition testimony that, 06:21 "Well, it was perfectly legal 06:23 for him to do it on his day off." 06:24 So how did they know if he was working 06:26 or if he's on his day off? 06:27 You know, you go down to the beach there 06:29 and there's lots of people doing 06:31 all kinds of things on the beach, 06:33 and this is San Francisco after all, you know? 06:36 And nobody's paying any attention. 06:39 My son's girlfriend, we had a baptism 06:42 at the beach down in Malibu a couple years ago. 06:46 And we had a loud speaker, you know, so we could hear, 06:51 you know, the service and what have you. 06:53 And I'm looking around 06:55 while the preacher is introducing things, 06:58 and he's preaching, he's reading from the Bible. 07:00 I'm looking around. 07:01 There isn't a soul on the beach 07:04 that's paying a lick of attention, you know? 07:06 Interesting. 07:08 So it was absurd that there was any kind of fear 07:12 that this lowly... 07:14 that anyone is going to look at this lowly custodian. 07:17 And imagine, because he's baptizing 07:19 somebody in the ocean... 07:21 First of all, what's a baptism? 07:23 They're going down in the water and coming back up. 07:26 And does anybody even... 07:27 They're not singing, they're not praying, 07:29 they're not doing anything to publicize it. 07:31 Just a private prayer. Right. 07:35 You know, the idea that this would be 07:38 an endorsement of religion 07:40 by the United States government, 07:42 this lowly African-American custodian 07:44 is just ludicrous. 07:45 You know, but I tell that story just as an illustration 07:49 that religious discrimination can happen to anybody 07:53 and to everybody. 07:54 It doesn't matter whether you're a majority faith, 07:56 minority faith. 07:58 You know, we talk about, for example, 08:00 laws against discrimination 08:01 on the base of sexual orientation. 08:03 Guess what, gays are not the only people 08:06 who have a sexual orientation, 08:09 you and I have a sexual orientation, 08:11 it's not the same, you know? 08:12 Yeah, it's true. 08:13 As a gay person, you know... 08:16 So anybody can be discriminated against. 08:19 And we found as we have gotten the experience and grown 08:22 that we're getting calls for help 08:24 from across the board 08:26 from Muslims being harassed, from Jews, 08:29 from, you know, Christians of other faiths, 08:32 we've got some... 08:33 those not working on Sunday, and of course, 08:36 still predominantly, a lot of Seventh-day Adventists 08:39 with Sabbath problems. 08:40 And it seems to me... 08:41 I don't know whether the numbers 08:43 of this sort of thing have gone up. 08:45 But the types of cases are bureaucratic. 08:50 And I just wonder 08:52 is the litigious nature of the US 08:56 has made employers fearful 09:00 of any sort of activity like this 09:02 and then they just sort of jumping on it 09:04 because it's obvious 09:05 that 50-60 years ago or further, 09:08 so let's say 100 years ago, 09:10 religious activity of employees informally 09:14 in the workplace 09:15 wouldn't have got anyone's attention very much. 09:18 But since, you know... 09:20 at the drop of a hat, people... 09:21 maybe even the Government in this case 09:24 and others just don't want any trouble, 09:25 so they're sort of pushing it away reflexly 09:29 where they might not have done that before. 09:30 Do you think there's an element of that? 09:32 I think there's certain hostility 09:35 to religion that we see... 09:37 I don't know that I would... 09:39 That has developed too. Government. 09:41 No, not by government. 09:43 The government happens to be with employee. 09:44 Most of our cases 09:45 are private employers, are not... 09:47 You know, we do have some government cases. 09:51 But again, it's people who are harassing, 09:55 it's people who are discriminating, 09:57 you know, they're in positions of authority 10:00 within the government or within companies, 10:02 but it's people, you know? 10:07 We may yet have to file another case 10:09 against Federal Express. 10:11 Well, we've had some previously. 10:14 Federal Express has policies 10:17 like all these companies do against discrimination, 10:20 but it's people who are failing to follow the policies. 10:26 Yeah. And it's true. 10:27 Tolerance in our society for everything, 10:29 including religion is at a low point. 10:32 The battle lines are drawn very quickly. 10:36 And if people get up in arms, 10:37 and they don't like what's going on 10:38 or they're frosty 10:40 about some criticism of their actions... 10:43 I'm sure this is feeding through into more litigation 10:48 on Sabbath, in our case, accommodation. 10:51 Well, you know, part of this story, 10:53 when it comes to the Civil Rights Act 10:56 and the national protections 10:58 we have against religious discrimination 11:01 in our laws has to be 11:05 a faulty view 11:09 of the separation of church and state, 11:11 of the Establishment Clause. 11:13 The first case that went to the Supreme Court 11:16 back in the 1970s, that was decided... 11:21 it was applying the obligation to accommodate 11:26 the religious practices of employees 11:27 and involved a mechanic for a TWA, remember TWA? 11:32 Hardison. Hardison. Correct. 11:35 TWA against Hardison. 11:37 And one of the arguments made on behalf of TWA 11:42 was that having special rules to accommodate people of faith 11:48 was an establishment of religion. 11:50 This violated the First Amendment. 11:53 And the Supreme Court did not go back far, 11:57 but they watered down the obligation. 11:59 It was... 12:01 The statute reads that company's employers 12:05 have to provide reasonable accommodation 12:07 short of an undue hardship. 12:09 Well, the court watered down undue hardship 12:11 and deprived to practically nothing. 12:14 Dominimus. Dominimus. Exactly. 12:16 Dominimous which means pretty much bogus. 12:18 Nothing. Right. 12:20 Now we have been successful in California 12:23 and in a couple of other states 12:25 at adopting a different standard 12:27 that was first done with the Americans 12:30 With Disabilities Act, 12:32 which is a significant difficulty 12:34 or expense standard of undue hardship, 12:37 and we've been pushing for two decades 12:39 to get this standard 12:40 written into Title 7 at the federal level 12:44 and neither party has been 12:45 especially helpful in pushing this forward. 12:50 We might have discussed it in the past. 12:52 But I think what's getting in the way more and more 12:55 is this tilt by the Supreme Court 12:57 to recognizing the rights 12:59 and writing them large for corporations. 13:02 A corporate, I think, goes against individual rights. 13:05 And as well as that, I have heard, in particular, 13:08 the Roman Catholic Church stating, 13:12 from a legitimate point, 13:13 but I don't like to hear it in view of what's happening 13:16 with the civil idea of corporations, 13:18 they stated that there needs to be less fixation 13:22 on individual's conscience rights 13:24 and more on corporate rights for the church. 13:26 This corporate thinking bothers me. 13:29 Well, there's no question 13:30 that we have always had a bias in our laws that favors... 13:34 Oh, absolutely, this was founded on corporate, 13:37 was settled with corporations before independence. 13:41 And yeah, there is an imbalance in favor of the corporations, 13:46 like I say, 13:47 some of our state laws in California. 13:49 We've made enormous headway 13:52 in crafting a set of laws 13:56 that really does provide vigorous protection 13:58 for people of faith in the workplace. 14:02 I'll tell you the nut 14:04 that we need to crack right now, 14:05 and we're on the verge of cracking it in California, 14:09 has to do with what can employers ask 14:13 in the hiring process. 14:15 When you ask about availability, 14:17 and increasingly, 14:18 there are online job applications... 14:20 Trying to filter it before you even offer them... 14:22 If you're not... 14:23 If you don't say 14:24 you're available seven days a week, 14:26 you don't even... 14:27 you just get bounced out of the application process. 14:28 It's a very important aspect. Let's come back to that. 14:31 Let's take a short break and come back 14:33 and we'll discuss why is that, perhaps, 14:35 people are being prescreened before the job is even offered 14:39 where they might have religious accommodation issues. 14:42 Stay with us. |
Revised 2018-11-29