Welcome to the Liberty Insider.
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This is the program
designed to give you insights
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into religious
liberty developments
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in the US and around the world.
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My guest on this program
is Sonia DeWitt, attorney.
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And I know you specialize
in antidiscrimination cases,
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you're also
specializing in writing articles
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for Liberty
magazine, which I'm the editor.
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And I didn't
formally introduce myself,
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I'm Lincoln Steed.
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I'd like to talk to you, Sonia,
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a little bit
about the Supreme Court.
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And I know you
wrote an article recently
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zeroed in on Justice Thomas,
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and some of the quirks
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that he's
introduced to the court.
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How do you see his role of late?
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He's been there a long
time, but he's sort of emerging,
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isn't he with the
death of his fellow traveler,
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I think, Justice Scalia.
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Yes.
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We're looking more closely
and seeing he has a very active
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and influential role.
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I think under Scalia,
he was kind of a me-too.
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But now he's the proponent,
and now he's got Gorsuch
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on his side, which is
another scary development.
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Now he was the first of
President Trump's appointees.
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Right.
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And he is turning out to be
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another Scalia by
everyone's account.
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And that's a
disturbing development
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for multiple reasons.
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Now, what do you think of...
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This is probably
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different
direction you're taking.
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What do you think of
Justice Thomas's long silence?
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He didn't say one
thing as I remember on,
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in public
presentations and comments
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and that nothing until a
day or two after Scalia died,
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then he spoke
for the first time.
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I mean, what sort of discipline
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does that take
to keep that quiet?
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Well, I wouldn't
call it discipline, but...
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No, but I'm thinking, all right.
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I've got to put quotations.
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Yeah, I probably shouldn't
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really say what
I think about that.
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But what I can say is that
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I find his
views very disturbing.
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And they're extremely radical.
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I don't think
anybody really understands
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or I shouldn't say anybody,
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but the general public certainly
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does not understand
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how dangerous
his viewpoints are.
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And in the area
of religious liberty,
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there are a couple of viewpoints
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that are very dangerous.
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And now that he's part
of a conservative majority,
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he is a much
more dangerous force
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than he was before.
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And it's very disturbing.
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Now, tell me you follow
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the court much
closer than I would,
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could or want to like
yours, close to your specialty.
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But behind the scenes,
is he emerging as a leader
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in the discussions and a force
to really influence the others?
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Well, I don't know about that.
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I don't get that impression,
but I would say that Gorsuch,
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with the addition
of Gorsuch on his team,
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he is a much greater force
than he would be individually.
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In fact, there
was a case recently
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in which it was not a
religious liberty case,
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but in which
Gorsuch actually took
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his concurrence, which was
not the opinion of the court
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and slipped it in as
being the law when it actually
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was just Thomas's opinion.
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And that's very, very
disturbing development.
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So I think that
he has the potential
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to have a lot more influence
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than one
justice usually we have.
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Explain for the millions
of lay people that we hope,
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we believe watch this program.
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And, of course,
most of our viewers
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are not even in
the United States.
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But how would you characterize
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Thomas's judicial worldview?
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Well, it's very interesting
because he's an originalist,
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which means that you
believe in the original intent
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of the founders
and some originalists
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are actually are textualists,
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which means you pay
very close attention
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to the actual text
of the Constitution.
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But his originalism is
a very interesting version
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because being African-American,
it's a very anomalous position
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to be an origanilist.
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He doesn't like the
positive... What do they call?
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I've forgotten the term now
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where there's
extra help given to...
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Affirmative
action. Affirmative action.
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He's against affirmative action,
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which is very
odd because arguably
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his own situation has
benefited somewhat from that.
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Well, yes, I doubt if
he would be on the court,
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if it weren't for
affirmative action
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on many levels, but going back
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to the original Constitution,
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of course, the
original Constitution
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condone slavery
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and made it a part of
the original Constitution.
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So in the originalist terms,
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if he were going back to
the original Constitution,
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he'd still be a slave.
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So it's a very, very strange,
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but he rationalizes
that by saying he believes
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in the original
ideals of the founders,
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which actually sounds to me
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a lot more like a liberal
living Constitution viewpoint
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than an actual originalist one.
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But his
viewpoints on other issues
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are very disturbing
because his view of originalism
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and in my opinion,
he's not very consistent
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either because he
ignores historical evidence
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that doesn't
support his position.
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Yeah, I think he doesn't...
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And you're getting
close to what that I think of.
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I don't think he
likes some of the things
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that have happened
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in the last
four or five decades.
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Well, clearly,
clearly, he doesn't.
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And he's looking for
a constitutional excuse
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to attack them.
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Yes, and that's an actually
conservatives in general.
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This is a generalization,
but it tends to be true.
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They're very hypocritical
in their judicial philosophy
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because they believe supposedly
in judicial restraint.
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But they're always trying to...
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They always invalidate
statutes they don't like
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that have liberal philosophies.
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So how much do they actually
believe in judicial restraint?
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My viewpoint is not very much.
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Well, I've read
a number of times,
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not in the last
two or three years,
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but back toward the
end of the Bush presidency,
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I think it was,
the conservators...
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I'm hesitating because,
you know, it's hard to lump
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everyone in together.
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But the far right
faction, who are now behind
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some of these
recent appointments,
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have about 120
previous Supreme Court cases
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that they want overturned.
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So you're right.
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It's not restrained.
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It's unbounded
ambition to change
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so much of the court's own work.
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So his views on
religious liberty
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are particularly the
establishment clause.
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And I think, in general,
the pattern of the court
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over the last few decades
is to expand free exercise.
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So they don't have a
problem with free exercise,
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at least for Christians.
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And it's amazing how
many of the cases involving
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free exercise
actually involved Christians.
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I mean, I can't
think of maybe one or two
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that don't involve Christians.
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Do you know offhand
his personal opinion
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on the Supreme Court case
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that upheld the
right of the baker...?
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I don't remember.
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Withheld his
service from a gay couple?
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I don't remember
how he voted on that.
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But I would, I
would bet like 90%
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that he voted
with the majority too.
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Yes, I too.
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But I don't remember
his take on it personally.
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I don't remember, but
I, knowing his positions
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in general, I
would say definitely
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he supported the Baker.
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And I think probably,
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and this is what is
really disturbing about his...
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Well, there are a
couple of doctrines,
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non neutrality
and disincorporation,
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and I'll explain
what those two mean.
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Yes, please, for our listeners.
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So, over the last...
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Well, in general,
throughout our history,
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it's kind of been assumed
that the Constitution requires
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the government treat
all religions equally,
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and non religion as well.
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And that's been explicit
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in the case law
for at least 70 years.
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So, Scalia joined by Thomas,
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in the past few decades
have been arguing that at least
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what I call
ceremonial non neutrality,
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when issues like
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prayer in a legislative chamber
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or a public
monument on public land
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are concerned
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that the government
doesn't have to be neutral.
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The government can
favor as Scalia put it,
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religion over non religion,
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and monotheistic
religions over others.
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And that is a
very, very disturbing.
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So you're connecting those two
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with the often stated
excuse for certain things,
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the ceremonial deism,
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religion removed of
its real significance
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so the state can allow it.
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I thought it predated Scalia.
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The ceremonial
deism is a different,
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I think, both
liberals and conservatives
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kind of tacitly
accepted ceremonial deism.
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Okay, then I'll approach,
I'll comment it on another way.
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You mentioned through
in the religious services
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and so on.
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How would an originalist
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deal with the chaplains in
the Senate and the Congress?
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There was something that
Madison had problems with,
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so it goes back to...
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Right, right.
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And that's been
a dispute between,
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you know,
between the two factions.
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So these guys
would have to create
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some sort of an exception
for that sort of an incursion
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of religious
activity and government.
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Well, I think
what is tacitly been,
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as you said,
the ceremonial deism
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but non neutrality
is a different concept,
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it's more dangerous.
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Ceremonial deism is kind of,
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well, we
recognize what's happening,
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we all kind of understand
that it's a ceremonial thing,
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it doesn't really have
much to do with real religion.
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What Thomas is
saying essentially is...
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Which you could also say about
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the established
church in England.
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What Thomas is
saying is essentially,
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religion can
come in to the public,
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to the government
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as religion, and it's okay.
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And it's okay, if you
don't try to be neutral
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if, you know, don't try
to be multi denominational,
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you can just have
a Christian message
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and that's okay.
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And basically
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it's breaking down
the concept of neutrality,
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which has been a bedrock concept
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of our religious liberty.
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Well, it certainly
would immediately marginalize
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Buddhists, Muslims
and Jews, wouldn't it?
00:11:41.20\00:11:44.20
Well, not Muslims and Jews
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because he said monotheist,
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so that would cover.
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But most, well, it's
true, you got to be very careful
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because Christianity
can appeal to monotheism.
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But if it speaks of
the things that define
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Christianity, Christ
you're instantly in problems.
00:11:59.38\00:12:03.55
But, of course,
he says monotheism,
00:12:03.59\00:12:06.96
but we really know
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that he doesn't
really mean monotheism.
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I mean, maybe Judaism,
probably Judaism there,
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you know, will
allow give them a pass.
00:12:15.63\00:12:17.63
But certainly
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he's not
referring to Islam here.
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We all know that because...
00:12:20.47\00:12:21.80
No, no.
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So he says monotheism,
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but he really means Christianity
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and may be Judaism.
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As they say, Judeo
Christian, that's a big,
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you know, thing for
the Christian, right?
00:12:33.25\00:12:35.02
Big term.
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So basically it's,
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okay, we're gonna expand
the rights for Christians
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and maybe Jews,
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and contract them
for everybody else.
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So everyone who
is not a monotheist,
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Buddhists, you know,
00:12:51.23\00:12:55.57
any other religion,
atheists, agnostics,
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any other religious group
that is not Christians or Jews,
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you're gonna be...
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And as we see,
00:13:04.71\00:13:06.65
there's a contraction of
rights for Muslims as well.
00:13:06.68\00:13:09.58
So, right, yes, since
9/11 actually in many way.
00:13:09.62\00:13:13.36
So which is driving it?
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And again, I'll
play the devil's advocate
00:13:14.79\00:13:16.69
on this argument.
00:13:16.73\00:13:18.13
Is this a shift
in the Supreme Court
00:13:18.16\00:13:20.33
or a shift in society?
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Because certainly since 9/11,
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foreign
religions as well as Islam,
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with radical Islam
with its agenda has become,
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you know, we're scared of it.
00:13:34.38\00:13:36.88
We want to say that
it's not us type thing.
00:13:36.91\00:13:39.88
So I can see there's
a societal turn against
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fringe religion for
one of a better term,
00:13:44.05\00:13:46.96
and to equate America
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with sort of a Christian center,
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you know, godly center.
00:13:51.66\00:13:53.80
And yes, these guys
have a particular view,
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but it's sort
of coming together.
00:13:55.96\00:13:57.33
I don't think they have...
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I just have a gut feeling
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their power is
not only or primarily
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because they're
starting to twist case law,
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but they
reflecting a great change
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or put it another way,
even if they were on track,
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a societal shift exemplified
by the President's statements
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in his first
initiative in office
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would show where we're going.
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Well, I would
disagree with that.
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Certainly the president
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and, you know,
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the republicans are
going in that direction.
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And there is certain
paranoia about Muslims,
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but I don't think
that's where it's coming from.
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Because the
actual trend of society
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is not in that society at large.
00:14:42.34\00:14:44.75
Well, that's good. You
have a very positive image.
00:14:44.78\00:14:47.42
We'll take a break
00:14:47.45\00:14:48.78
and be back shortly to
continue this discussion.
00:14:48.82\00:14:51.55