Participants:
Series Code: LI
Program Code: LI190434A
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00:25 Welcome to the Liberty Insider.
00:27 This is the program designed to give you insights 00:30 into religious liberty developments 00:32 in the US and around the world. 00:35 My guest on this program is Sonia DeWitt, attorney. 00:39 And I know you specialize in antidiscrimination cases, 00:44 you're also specializing in writing articles 00:47 for Liberty magazine, which I'm the editor. 00:49 And I didn't formally introduce myself, 00:52 I'm Lincoln Steed. 00:54 I'd like to talk to you, Sonia, 00:57 a little bit about the Supreme Court. 00:59 And I know you wrote an article recently 01:03 zeroed in on Justice Thomas, 01:06 and some of the quirks 01:08 that he's introduced to the court. 01:10 How do you see his role of late? 01:12 He's been there a long time, but he's sort of emerging, 01:15 isn't he with the death of his fellow traveler, 01:18 I think, Justice Scalia. 01:19 Yes. 01:21 We're looking more closely and seeing he has a very active 01:23 and influential role. 01:24 I think under Scalia, he was kind of a me-too. 01:27 But now he's the proponent, and now he's got Gorsuch 01:31 on his side, which is another scary development. 01:34 Now he was the first of President Trump's appointees. 01:37 Right. 01:39 And he is turning out to be 01:41 another Scalia by everyone's account. 01:44 And that's a disturbing development 01:50 for multiple reasons. 01:51 Now, what do you think of... 01:53 This is probably 01:54 different direction you're taking. 01:56 What do you think of Justice Thomas's long silence? 02:00 He didn't say one thing as I remember on, 02:03 in public presentations and comments 02:06 and that nothing until a day or two after Scalia died, 02:10 then he spoke for the first time. 02:13 I mean, what sort of discipline 02:14 does that take to keep that quiet? 02:15 Well, I wouldn't call it discipline, but... 02:18 No, but I'm thinking, all right. 02:19 I've got to put quotations. 02:25 Yeah, I probably shouldn't 02:27 really say what I think about that. 02:29 But what I can say is that 02:34 I find his views very disturbing. 02:37 And they're extremely radical. 02:40 I don't think anybody really understands 02:42 or I shouldn't say anybody, 02:43 but the general public certainly 02:45 does not understand 02:47 how dangerous his viewpoints are. 02:50 And in the area of religious liberty, 02:52 there are a couple of viewpoints 02:54 that are very dangerous. 02:56 And now that he's part of a conservative majority, 02:59 he is a much more dangerous force 03:04 than he was before. 03:05 And it's very disturbing. 03:06 Now, tell me you follow 03:08 the court much closer than I would, 03:10 could or want to like yours, close to your specialty. 03:15 But behind the scenes, is he emerging as a leader 03:19 in the discussions and a force to really influence the others? 03:22 Well, I don't know about that. 03:24 I don't get that impression, but I would say that Gorsuch, 03:29 with the addition of Gorsuch on his team, 03:31 he is a much greater force than he would be individually. 03:35 In fact, there was a case recently 03:37 in which it was not a religious liberty case, 03:39 but in which Gorsuch actually took 03:42 his concurrence, which was not the opinion of the court 03:46 and slipped it in as being the law when it actually 03:51 was just Thomas's opinion. 03:53 And that's very, very disturbing development. 03:56 So I think that he has the potential 04:01 to have a lot more influence 04:03 than one justice usually we have. 04:05 Explain for the millions of lay people that we hope, 04:09 we believe watch this program. 04:11 And, of course, most of our viewers 04:13 are not even in the United States. 04:15 But how would you characterize 04:17 Thomas's judicial worldview? 04:22 Well, it's very interesting because he's an originalist, 04:26 which means that you believe in the original intent 04:30 of the founders and some originalists 04:33 are actually are textualists, 04:34 which means you pay very close attention 04:36 to the actual text of the Constitution. 04:39 But his originalism is a very interesting version 04:43 because being African-American, it's a very anomalous position 04:48 to be an origanilist. 04:49 He doesn't like the positive... What do they call? 04:52 I've forgotten the term now 04:54 where there's extra help given to... 04:57 Affirmative action. Affirmative action. 04:59 He's against affirmative action, 05:01 which is very odd because arguably 05:04 his own situation has benefited somewhat from that. 05:06 Well, yes, I doubt if he would be on the court, 05:09 if it weren't for affirmative action 05:12 on many levels, but going back 05:15 to the original Constitution, 05:16 of course, the original Constitution 05:18 condone slavery 05:19 and made it a part of the original Constitution. 05:22 So in the originalist terms, 05:27 if he were going back to the original Constitution, 05:29 he'd still be a slave. 05:31 So it's a very, very strange, 05:33 but he rationalizes that by saying he believes 05:36 in the original ideals of the founders, 05:39 which actually sounds to me 05:41 a lot more like a liberal living Constitution viewpoint 05:46 than an actual originalist one. 05:49 But his viewpoints on other issues 05:52 are very disturbing because his view of originalism 05:56 and in my opinion, he's not very consistent 05:59 either because he ignores historical evidence 06:02 that doesn't support his position. 06:05 Yeah, I think he doesn't... 06:06 And you're getting close to what that I think of. 06:08 I don't think he likes some of the things 06:10 that have happened 06:12 in the last four or five decades. 06:14 Well, clearly, clearly, he doesn't. 06:15 And he's looking for a constitutional excuse 06:19 to attack them. 06:21 Yes, and that's an actually conservatives in general. 06:27 This is a generalization, but it tends to be true. 06:30 They're very hypocritical in their judicial philosophy 06:33 because they believe supposedly in judicial restraint. 06:36 But they're always trying to... 06:40 They always invalidate statutes they don't like 06:43 that have liberal philosophies. 06:45 So how much do they actually believe in judicial restraint? 06:48 My viewpoint is not very much. 06:51 Well, I've read a number of times, 06:53 not in the last two or three years, 06:55 but back toward the end of the Bush presidency, 06:59 I think it was, the conservators... 07:03 I'm hesitating because, you know, it's hard to lump 07:06 everyone in together. 07:07 But the far right faction, who are now behind 07:10 some of these recent appointments, 07:12 have about 120 previous Supreme Court cases 07:16 that they want overturned. 07:18 So you're right. 07:19 It's not restrained. 07:21 It's unbounded ambition to change 07:25 so much of the court's own work. 07:27 So his views on religious liberty 07:30 are particularly the establishment clause. 07:33 And I think, in general, the pattern of the court 07:36 over the last few decades is to expand free exercise. 07:40 So they don't have a problem with free exercise, 07:43 at least for Christians. 07:44 And it's amazing how many of the cases involving 07:49 free exercise actually involved Christians. 07:51 I mean, I can't think of maybe one or two 07:55 that don't involve Christians. 07:57 Do you know offhand his personal opinion 08:00 on the Supreme Court case 08:02 that upheld the right of the baker...? 08:05 I don't remember. 08:07 Withheld his service from a gay couple? 08:08 I don't remember how he voted on that. 08:10 But I would, I would bet like 90% 08:13 that he voted with the majority too. 08:16 Yes, I too. 08:18 But I don't remember his take on it personally. 08:20 I don't remember, but I, knowing his positions 08:23 in general, I would say definitely 08:24 he supported the Baker. 08:28 And I think probably, 08:30 and this is what is really disturbing about his... 08:35 Well, there are a couple of doctrines, 08:38 non neutrality and disincorporation, 08:40 and I'll explain what those two mean. 08:41 Yes, please, for our listeners. 08:45 So, over the last... 08:47 Well, in general, throughout our history, 08:50 it's kind of been assumed that the Constitution requires 08:54 the government treat all religions equally, 08:57 and non religion as well. 08:59 And that's been explicit 09:00 in the case law for at least 70 years. 09:04 So, Scalia joined by Thomas, 09:10 in the past few decades have been arguing that at least 09:15 what I call ceremonial non neutrality, 09:18 when issues like 09:21 prayer in a legislative chamber 09:23 or a public monument on public land 09:28 are concerned 09:29 that the government doesn't have to be neutral. 09:32 The government can favor as Scalia put it, 09:35 religion over non religion, 09:37 and monotheistic religions over others. 09:40 And that is a very, very disturbing. 09:42 So you're connecting those two 09:44 with the often stated excuse for certain things, 09:48 the ceremonial deism, 09:49 religion removed of its real significance 09:52 so the state can allow it. 09:55 I thought it predated Scalia. 09:57 The ceremonial deism is a different, 10:00 I think, both liberals and conservatives 10:02 kind of tacitly accepted ceremonial deism. 10:06 Okay, then I'll approach, I'll comment it on another way. 10:09 You mentioned through in the religious services 10:13 and so on. 10:15 How would an originalist 10:17 deal with the chaplains in the Senate and the Congress? 10:22 There was something that Madison had problems with, 10:23 so it goes back to... 10:25 Right, right. 10:26 And that's been a dispute between, 10:28 you know, between the two factions. 10:30 So these guys would have to create 10:33 some sort of an exception for that sort of an incursion 10:38 of religious activity and government. 10:39 Well, I think what is tacitly been, 10:43 as you said, the ceremonial deism 10:44 but non neutrality is a different concept, 10:47 it's more dangerous. 10:49 Ceremonial deism is kind of, 10:50 well, we recognize what's happening, 10:52 we all kind of understand that it's a ceremonial thing, 10:54 it doesn't really have much to do with real religion. 10:57 What Thomas is saying essentially is... 10:59 Which you could also say about 11:01 the established church in England. 11:04 What Thomas is saying is essentially, 11:08 religion can come in to the public, 11:10 to the government 11:13 as religion, and it's okay. 11:16 And it's okay, if you don't try to be neutral 11:19 if, you know, don't try to be multi denominational, 11:23 you can just have a Christian message 11:26 and that's okay. 11:27 And basically 11:29 it's breaking down the concept of neutrality, 11:33 which has been a bedrock concept 11:36 of our religious liberty. 11:38 Well, it certainly would immediately marginalize 11:41 Buddhists, Muslims and Jews, wouldn't it? 11:44 Well, not Muslims and Jews 11:46 because he said monotheist, 11:48 so that would cover. 11:50 But most, well, it's true, you got to be very careful 11:52 because Christianity can appeal to monotheism. 11:57 But if it speaks of the things that define 11:59 Christianity, Christ you're instantly in problems. 12:03 But, of course, he says monotheism, 12:06 but we really know 12:09 that he doesn't really mean monotheism. 12:12 I mean, maybe Judaism, probably Judaism there, 12:15 you know, will allow give them a pass. 12:17 But certainly 12:19 he's not referring to Islam here. 12:20 We all know that because... 12:21 No, no. 12:23 So he says monotheism, 12:24 but he really means Christianity 12:27 and may be Judaism. 12:30 As they say, Judeo Christian, that's a big, 12:33 you know, thing for the Christian, right? 12:35 Big term. 12:36 So basically it's, 12:39 okay, we're gonna expand the rights for Christians 12:43 and maybe Jews, 12:44 and contract them for everybody else. 12:47 So everyone who is not a monotheist, 12:51 Buddhists, you know, 12:55 any other religion, atheists, agnostics, 12:59 any other religious group that is not Christians or Jews, 13:03 you're gonna be... 13:04 And as we see, 13:06 there's a contraction of rights for Muslims as well. 13:09 So, right, yes, since 9/11 actually in many way. 13:13 So which is driving it? 13:14 And again, I'll play the devil's advocate 13:16 on this argument. 13:18 Is this a shift in the Supreme Court 13:20 or a shift in society? 13:22 Because certainly since 9/11, 13:26 foreign religions as well as Islam, 13:31 with radical Islam with its agenda has become, 13:34 you know, we're scared of it. 13:36 We want to say that it's not us type thing. 13:39 So I can see there's a societal turn against 13:44 fringe religion for one of a better term, 13:46 and to equate America 13:49 with sort of a Christian center, 13:51 you know, godly center. 13:53 And yes, these guys have a particular view, 13:55 but it's sort of coming together. 13:57 I don't think they have... 13:59 I just have a gut feeling 14:01 their power is not only or primarily 14:05 because they're starting to twist case law, 14:08 but they reflecting a great change 14:11 or put it another way, even if they were on track, 14:14 a societal shift exemplified by the President's statements 14:18 in his first initiative in office 14:21 would show where we're going. 14:23 Well, I would disagree with that. 14:25 Certainly the president 14:26 and, you know, 14:29 the republicans are going in that direction. 14:32 And there is certain paranoia about Muslims, 14:34 but I don't think that's where it's coming from. 14:37 Because the actual trend of society 14:42 is not in that society at large. 14:44 Well, that's good. You have a very positive image. 14:47 We'll take a break 14:48 and be back shortly to continue this discussion. |
Revised 2019-05-10