"Philosophical Concersn About Today's Supreme Court" Why? Radio episode with guest Andrew Seidel
11:39PM Oct 9, 2022
Jack Russell Weinstein
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The original episode can be found here: https://wp.me/p8pYQY-jq0
Why philosophical discussions about everyday life is produced by the Institute for philosophy and public life, a division of the University of North Dakota's college of arts and sciences. Visit us online at why radio show.org
Hi, I'm Jack Russel Weinstein host of why philosophical discussions about everyday life. Today's episode will once again be joined by Andrew Seidel, who will help us explore the philosophical concerns about today's Supreme Court. Please visit why radio show.org For our archive show notes and to support the program. Click donate on the upper right hand corner to make your tax deductible donations for the University of North Dakota secure website. We exist solely on listener contributions. So I made a big mistake. I scheduled today's interview for Yom Kippur War, which is today, as I interview Andrew and it's the most important holiday of the Jewish year. I've been observing it my whole life, but it wasn't on my calendar that only had Easter and Christmas, not my holidays. So I painted myself in a corner and decided it was better to break tradition and get this episode out on time that it was important to broadcast this and not another rerun. I'm I'm not Sandy Cofax. Here's the thing. I've spent years at UND trying to get people to be considerate of Jewish holidays. I complain when meetings overlap. I advocate for students when instructors won't make accommodations, I canceled my classes for the holidays, giving students less than they paid for. Now I worry that I look like a fraud an opportunist who exploits my religion for personal gain. What will my bosses say when they hear a recorded why radio instead of coming to campus? Will they roll their eyes when I complain about lack of inclusion? Will they stop rescheduling meetings for me? I'd be less concerned about all of this if I knew that the Supreme Court had my back like it used to, but I'm not really convinced that it does.
There are two basic ways that the US Constitution protects religious freedom. The first is by prohibiting an official religion. The government must be secular and have non religious justifications for its actions. religious symbols should be excluded from government spaces, and employers of all types, not just government are forbidden from judging employees based on how they worship. The second protection requires that government remain neutral between religions. Muslims can't have rights Christians don't have and Buddhists shouldn't be prohibited from the same type of expression atheists engage in. This is not an absolute system. Public schools take Christmas off, not Ramadan. Jehovah's Witnesses must let their children receive blood transfusions even though their religion prohibits it. It's the Supreme Court's job to sort all of this out how much religion is too much which freedom is necessary and which is a luxury? How should religious government employees behave when they act in the name of the secular state? The Supreme Court is supposed to look at the Constitution, how it has been interpreted in the past, ask what new, more lessons we've learned and articulate the nature and limits of laws. This too, has had its ups and downs. But in general, the court decisions have tended towards more inclusion over time. That is until recently, since John Roberts was appointed Chief Justice in 2005. Majority decisions have become more and more religious. Notice that I did not say that the court has become more conservative. Liberals look forward towards progress, all else being equal. A liberal prefers change. Conservatives, in contrast, want to conserve the present, they aim to keep the status quo. They want the people in power to stay in power and are cautious of risking what they already have. Edmund Burke wrote that pain and conflict caused by change is always worse than the results of the change. That is the core of modern conservatism. If the Supreme Court were truly conservative, it would not have overturned Roe v. Wade. It would celebrate gay marriage and contraception. It would treat precedent as if it were inscribed on stone tablets. But instead, the majority of today's justices are reactionaries. People who want to go back to what they consider to be a better time, and they're willing to distort the law to get there. Where they differ maybe is how far back they want to go. Some seem to glorify the at some the 50s Clarence Thomas appears to prefer the 19th century these reactionary judges are circumspect because once we have a date, we'll know who specifically will have their rights taken away. Remember, for most of American history, women were powerless when they were at work. African Americans were excluded from popular culture, and almost nobody went to college. People were married at 20 years old and had many, many children. On today's episode, we're going to look at the current Supreme Court and explore its reactionary shift. Our guest is going to argue that the justices interpret laws through their own private ideologies, and that they're being used as weapons by a small group of evangelical Christians specifically, he believes that these fringe believers hope to remake diverse America in their own image, and he will insist this runs counter to the Supreme Court's mission. What does any of this have to do with me and Yom Kippur war? I live in a community that is Christian by default. Remember, the Jewish holiday was not on my calendar, my school only closes on Easter and Christmas, I had to drive 90 minutes to find a place I wanted to pray at. And I met folks who drove four and a half hours to do the same. If you combine all of the synagogues in North Dakota, South Dakota, Montana and Minnesota, the states that surround me, there are 25 houses of Jewish worship surrounded by 8.3 million people. What happens when the 8.2 4 million of those who aren't Jewish, decide that I shouldn't get the day off, or that I should drive cross country and not downstate to worship my preferred way. The Supreme Court is there to protect all of us equally. But if our guest is right, and there are activists who privilege one religion over the other, than we will lose the core of American democracy and the freedom of individuality. I myself would no longer have the choice to be Jewish, I could only be so with the consent of the millions of others who surround me. This is not the right to be a Jew. It's just the permission. And as we all know, that permission can and will be revoked. And now our guest Andrew Seidel is Vice President for Strategic Communications for Americans United for the separation of church and state. He's a practicing attorney and the author of two books, the founding myth why Christian nationalism is on American and the newly released American crusade how the Supreme Court is weaponizing religious freedom. He appeared on white radio less than a year ago to discuss the separation of church and state. But the Supreme Court has dominated the news so much that we needed him back right away to finish that conversation. Andrew, welcome to why.
Thank you so much for having me on. Jack. It's such a pleasure and Kumar shettima Tova,
thank you very much, folks at home. If you'd like to participate, share your favorite moments from the show and tag us on Twitter, Instagram, and Facebook. Our handle is at why radio show, you can always email us at ask firstname.lastname@example.org Listen to our previous episodes for free. Please rate us on iTunes and Spotify so that others can find the show and we'd very much appreciate if you'd help us make our 15th Season even better than the previous one. Visit Why radio.org and click donate in the upper right hand corner. All right. So Andrew, obviously my comments in the monologue were personal, and also religious. You've been working tirelessly for keeping religious belief and secular government separate. Am I am I setting up the conversation wrong? Am I doing a disservice by focusing on my religious belief are our religion and secular life always in conflict?
I don't think they're always in conflict. And I really tried to show that in American crusade, I actually think that a lot of the questions that are posed, especially in recent cases that the Supreme Court has been deciding about religion, and religious freedom are much easier than they are made out to be, unless there is something else going on beneath the surface of these questions. And, you know, really importantly, you pointed out that religious freedom has long been a shield. Right? It has been this hallowed protection against government overreach the minorities protection from the tyranny of the majority, and that religious freedom has been a right that we possess equally, right. It's embodied in the words that are etched into the edifice of the Supreme Court building equal justice under law. And it's supported by a strong separation of church and state, but not anymore. And the point that I make an American crusade is that there is a well funded, powerful network of Christian nationalist organizations and judges, we're talking about a billion dollar shadow network that is working to weaponize the First Amendment that is seeking to turn that protection of religious freedom enjoyed by all into a weapon of supremacy and privilege for the few. So I think your comments are perfectly apt because what we are talking about here at its most basic level is democracy and equality.
And you actually, it's, this is not just an I'll be mean to myself for a second. This is not just the paranoid delusion of a guy in, you know, in North Dakota, you talk about an incident that happened the first time there was a Hindu prayer at the Senate, why don't you talk about that and explain how that illustrates what you're talking about?
Sure, I mean, that there are there have been prayers in government bodies in the United States for for a long time. And there have actually been legal challenges to those prayers. And in my learned opinion, I guess, I think I think I can say that at this point. Those prayers are pretty clearly unconstitutional by any stretch of the imagination, but the Supreme Court decided in a case in 1983, that we're going to allow them because they've been going on for a really long time. Terrible reasoning, not the way you decide legal cases. And I get into that, in my first book, The founding myth quite a bit. But, you know, one of the things that I that I want to show is, it's basically what you said, like, I'm not some dude in a basement with red string, you know, connecting these dots with pictures to the Supreme Court justice. But there's, there's data to back up what I'm talking about. And there's also we have anecdotes. And during the first Hindu prayer in the US Senate, which was in 2007. Christians and patriots, that's how they identified themselves in the gallery got up and screamed, you know, this is an abomination. And nobody had interrupted the 1000s of prayers that had come before that. But you have not just people on the ground doing this, but also these these Christian nationalist organizations, the Crusaders, as I refer to them in the in the book, the people who are actually trying to weaponize religious freedom, saying that no, no, no, when it comes to our government, it's the recognition of our God, the Christian God, the God of the Bible, and they specifically say I have a quote in there from Dan will Wilde and from the American Family Association, he found it that saying, Every religion is not equal. That's my belief. That's logic. And it's not that that is Christian supremacy. And that is what they are going forward, you have Tony Perkins, of the Family Research Council also jumping in on this. And that was a group that was originally affiliated with James Dobson this Focus on the Family, which turns out a lot of Crusaders were talking about how tolerance and diversity have replaced the 10 commandments in the wake of this prayer that was just inclusive, that allowed other people a chance. And it to me was emblematic of some of the other problems that we are seeing and the push of this crusade to really privilege. Christianity, and especially not just Christianity, generally, it's really important here, a particular brand of conservative Christianity, above everything else. And and we are seeing that happen in case after case after case. And, and again, there's not just anecdotes, but there's data to back this up. And I recount some of the studies in American crusade as well.
And I want to emphasize that point, we spent a lot of time talking about it. The last time you were on why, that when you talk about Christian nationalism, and Christian nationalists, you're not talking about Christianity as a whole. And one of the interesting differences between this conversation and the last conversation you and I had was that this this phrase, Christian nationalists, is actually in the popular culture. Now people talk about it on the news, that it's not that I suspect you had something to do with that, but but in the wake of the extended conversation about January 6, and all that, that Christian nationalists is a very, very small group of, of specific denominational and specific political people, which is why you use the term Crusader, right? The Crusades, were the wars in which the church the European church tried to retake Jerusalem from the Muslims. And so it's it's a, it's a kind of colonialism a kind of military act to force a religion on a particular city. So, you know, this is this is again, an and this is not a condemnation of religion, it's not a condemnation of Christianity. It's not a condemnation of belief. It's it's specifically about the way that this group of people are acting politically, and are they doing that same thing? I was gonna say they're doing that thing in the Supreme Court, but, but that's what the whole conversation is about. So let me rephrase the question. Okay, first, am I right, in describing Christian nationalism in that way? And and how would you articulate what that means for our listeners?
I think I think that's fair income. Christian nationalism is this really toxic mix of politics and theology, and it creates a feedback loop in people's heads, where one feeds the other and you can't really separate the two from each other. And you can see this in the wake of the pandemic with for instance, masks and vaccines which no major religion really opposed either of but which did become a political test of faith whether or not you you agreed with masks or not whether or not you were getting going to get a vaccine or not. And that really grafted itself on to the Christian nationalist identity in this reality. He's really awful and creative. ways and I get into this in American crusade also. And it I think the problem that we face with Christian nationalism is that it creates a permission structure for a whole lot of dangerous action. And January 6 is, I think, the most obvious fruit of that permission structure. And I actually spearheaded a report called Christian nationalism in the January 6 insurrection with a number of other experts in this area that I published jointly with the Baptists joint committee and Amanda Tyler there. jemar tisby, Anthea Butler, Catherine Stewart, Andrew Whitehead, Sam Perry, all these experts came together to show that Christian nationalism was the uniting force behind all of the disparate groups that were there that day. And and the reports available for free, I'd really encourage everybody to go read it. But I mean, I think to the broader point, that I think that we're kind of dancing around, let me just say this that, you know, one of the questions I get in the book is why are we seeing this crusade? Why are Christian nationalists seeking this weapon? And it's largely a backlash against equality realized. Right? So conservative, white Christian Americans status as the dominant group in this country is threatened. And it has been for some time, right. They're losing the quote unquote, culture wars, which is a silly phrase that I think is meant to mask attacks on human rights. They're, they're losing the privilege and the deference which they believe they are do. And if you listen to a Leo's justice Sam Alito is gloating speech in Rome, from July right after He overturned Roe vs. Wade, you can really hear that coming through that that fear of loss of privilege and loss of deference. And we know that when the dominant group or caste in a society feels threatened, or left behind by circumstances, that it reacts or overreacts by seeking a way to retain that status. And that is why we are seeing them turn to Christian nationalism. That is why we're seeing them turn to violent insurrection, and the so called strong men, but that's also why we are seeing them work to weaponize religious freedom, because it will, the constitutional protection of religious freedom is quite literally being perverted into a weapon for them to retain that power and privilege over everybody else.
And we're going to get to that in detail in a minute. But I want to bring up this idea of permission structure, which is the idea that, that when these these things are put on the table, it gives people the permission, the opportunity that the cover to act out, and you illustrate this and the influence that Supreme Court has by talking about the aftermath of the I forget the name of the bakery, but the the decision of masterpiece cake. Yes, the masterpiece cake shop that said the baker, not the bakery had the right to refuse to make a cake for gay wedding. Could you remind us about that case? And tell us the aftermath? And why that illustrates the permission structure.
Yeah, I mean that that case is so fascinating. And it's one of the one of the reasons that I decided to write American crusade in the first place, because there's so much bad information out there about this case and and at its heart. The question in that case, is something that our courts and our system of laws and justice has answered many times before. And the argument was never even taken seriously, until you had crusaders packed onto the Supreme Court willing to aid this crusade to weaponize religious freedom. So what happened in that case, and again, if you don't believe me pick up a copy of the book I've got I've got the receipts, a a couple walked into a bakery and said we would like a cake for our wedding. And the bakery which is a limited liability corporation, organized and protected under the laws of the state of Colorado said for your wedding, the only information they had the only information the bakery had about the cake was that it was for this couple who happens to be gay. And at that point when they learned when the bakery learned it was for a couple was the same sex they refused to serve them. There was no discussion of what the cake would look like. There was no discussion of what would be on the cake you know, there's they didn't they didn't actually want a rainbow cake or anything like that. The only new piece of information the bakery had from the time when it was willing to serve the couple to the time that it was rejecting their service refusing to serve them was the fact that they were a gay couple.
So and just I want to I want to interrupt for just a second, please says please, you said something in passing that's really important philosophically, which is that you identified the bakery as a limited liability corporation. And the question here the philosophical question is, what are we defining as the bakery because a baker, an individual person made this decision, it wasn't a decision by the board. It wasn't decision by all the employees. And the baker as an individual was claiming that his rights are being violated, which we're gonna get to. But the bakery is a corporation and the bakery is designed to protect the person from from backlash and from having their own assets taken if someone Sue's the bakery. So automatically, I guess I want to ask, does the law equivocate? Does the law move back and forth without distinguishing between the bakery as a corporation and the baker as a person? And is that a problem right and of itself,
it's such an insightful question. And it got lost. In the discussion of this case, it really, really did. Because it is a limited liability corporation organized under the laws of the state of Colorado, and enjoys huge protections. As a result, as does the baker, Jack Phillips was his name. And the other people who are involved in running the bakery, owning it, organizing it all they have, there's something in corporate law called the corporate veil, which protects us as individuals, when we decide to start a company, right. So if you open a bakery, and the bakery sells a cake that gives 50 people at a wedding food poisoning, and sends them to the hospital, you even though you bake the cake as a person, you are not personally liable for any of those damages. The bakery itself might be in effect, it might go bankrupt, but your house, your personal assets, your personal bank account, your car, your kids, all of that are protected. Because you created this limited liability corporation, the entire purpose of a corporation is to separate the individual from the legal entity. And that was just completely ignored. In this case. And that's something that I get into in the book, I have a whole section on this. So each case, over the last decade of each important religious freedom case, has a chapter and I have a section in this chapter called bakery, or Baker. I mean, again, this is a business in a business Mall. It's in the mission trace shopping center, and it's alongside, you know, smoke shops and tattoo shops and a Pizza Hut. And I think an h&r block is a business that sells products, and it refused to sell to an LGBTQ couple, and that couple is protected under the civil rights law of the state of Colorado. Right, they are a protected class, you have to serve them at places of public accommodation equally. This is one of the many laws that Colorado businesses have to follow. Right? If you decide to incorporate, you're taking advantage of all these legal protections, we're also going to impose some burdens on you. And one of those sets of burdens is serving everybody who comes into your shop, regardless of race, religion, or in Colorado. Gender identity, sexual orientation, things like that.
And this leads to, right I mean, there's a whole discussion of whether or not a corporation is a person and actually we have an episode on that few years back, but the bakery or you know, let's say Hobby Lobby, that doesn't go to church, right, that doesn't abstain from eating pork that doesn't meditate. The company doesn't do it. It's the people within it. And so it seems like and tell me if I'm wrong, that the individual by refusing to make the cake is accepting the protection of the law and the liability company, but then exploiting their role as individual to claim that the bakery has the individual's right as opposed to the corporate right. Is it a confusion of two sets of rights?
I think it's a conflation of two sets, conflation, deliberate completion. I mean, this was intentional. I mean, and one of the things you know, if you were if you are remembering this case, and it's starting to ring bells for you out there, as you're listening to this, you're probably not remembering Charlie and Dave, the gay couple, you're probably remembering Jack Phillips who did a media tour. He was on the view among many other places, right like this case, which was a very simple case of a business discriminating against a minority became about a poor persecuted Christian. Being a two hacked by an overstepping government. And that was because of the Crusader involved in this case, the Alliance Defending Freedom ADF, which started out as this this anti gay organization, and has really been working to undermine all of these civil rights protections across the country, in the name of religious freedom and free speech. And they actually have a case before the Supreme Court right now called 303. Creative versus a lenis, which is essentially a redo of the masterpiece cake shop case, that is going to almost certainly blow a hole in all of our civil rights laws.
So we have just a few minutes before the break, I want to get back to the question about permission structure, remind us what the decision of the Supreme Court was, and then explained how that changed the culture of this discussion.
So in the case, the Supreme Court actually punted, it didn't decide whether or not businesses have a religious freedom, right, to refuse to serve people it doesn't like. And by the way, that is long standing precedent, well established under our Supreme Court, as soon as the Civil Rights Act was passed in the 1960s. It was challenged as a violation of religious freedom. And the Supreme Court left that argument off with that is very old precedent, you're talking to 60 years old, you know, that this Court is looking to undermine and undo what so what the court did, instead of actually overturning that precedent directly, in this case, what it said was the administrative body that investigates civil rights complaints, was hostile to Jack Phillips, the Baker's Christian beliefs. And it did that by pointing to a few random quotes in the record, but do not evinced any kind of hostility, the court had to manufacture this hostility to reach this decision. And one of the things that I that I'm really proud of about the book about American crusade is that I actually tracked down the commissioners of the Colorado civil rights body that that the Supreme Court called religious bigots, and I interviewed them and I got their side of the story. I also got Charlie and David side of the story. So I'm telling the full the true the real stories behind these cases in American crusade. And to answer your question What happened afterwards, after the court punted, and basically rubber stamped this discrimination, a study was done. And it showed that there was a significant increase in discrimination among wedding vendors in the state of Colorado. Afterwards, it emboldened this decision emboldened discrimination and emboldened to evenly across conservative liberal areas, urban suburban urban areas, it was, in effect directly tied to the Supreme Court's decision. And this shows not only that civil rights laws work, but where we are headed. After the Supreme Court really guts, these cases, this this coming term. And I want to point out one last thing for people before we go, and that's there is no legal way to draw a line between discriminating against people because they are LGBTQ, and discriminating against people because they are a minority religion, or because they are a minority race, if you allow one under the civil rights laws, if you allow religion or free speech to Trump civil rights laws on the basis of LGBTQ status, it's coming for religious minorities and racial minorities. Next, Jared tea, and I lay that out in the book.
So when when we get back from the break, I want to talk about sort of our vision of the Supreme Court the way that it's taught to us and then how it really works and what's happening as that structure in those attitudes change. But before we do that, we're going to take a break you're listening to Andrew Seidel and Jack Russell Weinstein on why philosophical discussions about everyday life We'll be back right after this.
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you're back with Andrew Seidel and Jack Russell Weinstein on why philosophical discussion about everyday life. And we're talking about the Supreme Court and the way that it's being used to change the nature and an attack notions of religious freedom. And I want to begin this segment by telling just a little story and again, it's it's about the religious holiday and I apologize for people who aren't interested in that. But it is an important day and it's on my mind Yom Kippur war is the second of two really important holidays in about a 10 days period. The first is Rosh HaShana, which is the Jewish new year the Hebrew calendar is different. And my family and I wanted to observe it as we always do. And we ended up for reasons that are not worth getting into going to. Abad house, which is very orthodox, very, very conservative, traditionalist Jews with a foot in in the 19th century. And politically, I'm really opposed to them, you know, they separate men and women, they're anti gay, they have a lot of other politics that I don't like. But we really wanted to observe this holiday with with other Jews who engaged in a similar ritual. And I was worried that bringing my wife and my daughter to this place that that discriminated against women would be offensive and problematic. Well, my daughter, who was born and raised in North Dakota, unlike me, who was born in New York City, never interacted with Orthodox Jews never had that experience. She had a blast, even though the men were in one sectioned off place praying, and my wife and daughter were in the kitchen, cooking and helping with kids. And it bothered me, and we wouldn't Yeah, anyway, the point is, I have more in common with liberal Muslims than I do with Orthodox Jews. But I was able to separate my politics temporarily and separate my convictions for a shared experience. And I bring that up, because in my opinion, and Andrew, I want you to tell me if this is true, the law tends to treat religious belief as if it's monolithic, as if, if you are a Christian, you believe all Christian things, and therefore, you can't choose what works for you. Or that if you're asked to compromise or make an adjustment in your religious belief that it is a corruption of your entire religious persuasion. And is that true? Am I misunderstanding how the law works? The law does not appear to treat religion with any nuance. It just treats it as I am a Christian, I am a Buddhist, I am a Muslim, I am a Jew. Poof, any violation of that is a corruption.
Well, first, your your initial setup there reminded me of something my friend Chrissy Stroop always says that shared values matter more than shared beliefs. And, you know, I completely agree with that I would rather have a drink and chat and split some guacamole with a group of, you know, Christians who value anti racism and social justice than a bunch of anti equality atheists. But to your point, I think what you're identifying is the deference that the law gives to religious believers. So one of and this is one of the things that I talked about in American crusade is historically, our courts do not examine the sincerity of religious beliefs. And specifically, there's I guess, I guess I would say the there's one exception to that, which is it prisoners often get the sincerity of their religious beliefs examined. And that rule makes a certain amount of sense, except when you start weaponizing religious freedom, because a weaponized religious freedom isn't is unequal. It allows one person to impose on another person's rights. And so early on in the book, I draw the three basic lines that we use to govern these kinds of questions in these kinds of cases. And one of the lines that we draw is religious freedom, and the rights of religious freedom and where other people's rights begin. And this is just a basic principle in all of law in a lot of civilization, because if your rights can trump my rights, then we are no longer equal. Right? You have more privileged than I do. So religious freedom has never been a right to infringe somebody else's rights to harm somebody else. And that is what we are seeing turned on its head by the Supreme Court. This supreme court is saying, Actually, Religious freedom is a license to violate somebody else's rights. It is a license to harm somebody and to look at the gay wedding cake case. It would be the court saying, yes, your belief allows you to deny the civil rights of other people and that again, that has never been the case. But that's what the Supreme Court is turning on its head, that has a pretty significant impact when you're talking about the sincerity of religious beliefs, right? Because if the law doesn't allow you to use your religion to harm others, it doesn't really matter whether your beliefs are sincere or not, because the only person you're affecting is you. But if the law allows you to impose those beliefs on others, then it actually matters whether or not you believe it. So what what we have at this Supreme Court is not only them allowing religious freedom to be used as a weapon to impose and harm others, but also standing by the old, we're not going to question the sincerity of religious beliefs. And one of the great examples of this is the Hobby Lobby case, which you mentioned earlier, Hobby Lobby as a corporation invested, made money off of the same drugs that it later claimed were abortion causing, like its retirements, funds were invested in that it covered those same drugs for its employees for many, many years. It was only when they wanted to challenge the landmark legislation of the first black president, that Hobby Lobby as a corporation, all of a sudden discovered this, this newfound religious belief, and it imposed that religious belief on its employees, right, it made them carry that burden, it took away their rights to contraception given to them under the Affordable Care Act, and use religion to do so. And the sincerity of that belief. Again, held by a corporation was never questioned.
And and this this sincerity thing, it goes both ways, right? You when you're at first different times in the book, you talk about extreme examples of people harming others through religious belief. And you bring two separate sets of examples that I found unbelievably shocking. The first was, many, many people will just let go of their steering wheel and go through intersection saying God will protect them causing unbelievable number of accidents. And then you have the sentence which is stick with me. Parents murdered children at God's behest with starting regularity, right? People still do this right? They still say God told me to kill my child, and then do it. And and how does the court deal with that?
I mean, it's such a good question. And those two examples, right, I opened the book with with these Jesus take the wheel examples, because they're shockingly common. And once you once your radar is kind of up on them, you see them everywhere. And the question that I ask is, where are all the religious freedom claims when it comes to Jesus taking the wheel? How come this isn't the fight that all of these crusaders groups like Alliance Defending Freedom and Becket Fund and First Liberty Institute? In Liberty Council? Why are they in court defending these people who let go of the wheel and then blow through the intersection, and 140 miles an hour? Where are they? And that's because we all know that religious freedom is not a license to drive recklessly or to put other people at risk. But for some reason, that leap doesn't make it to things like the pandemic for a lot of folks. And the examples of actually killing other people are extreme, but they are common. And I also include a line from Professor Micah Schwartzman, who observed that at the bottom of every slippery slope involving Religious freedom is human sacrifice, which is just I thought, a great line, but it's true. And the reason is, because not only has the Supreme Court used human sacrifice, as an example, it did that in the 1870s. So Did Thomas Jefferson back at the founding, actually, but because it's a very stark example, right. And, you know, I use these examples to draw the three clear lines. So for instance, you can believe that Jesus is telling you to let go of the wheel, you can believe that, we don't get to act on it. And if you do act on it, we can punish you, we can find you, we can take away your driver's license, you might go to jail if you kill somebody. And the same thing, if you, you are free to believe that God is telling you to kill your child. I think that's a bit of a red flag personally, but you're free to believe it. But you don't get to act on it. You if you do try to act on it, the civil law can step in and say no, that is not okay. We're going to stop you. And everybody agrees with these basic examples, right? And what we can synthesize from them and from all of the other cases is these really clear simple lines that show us where and how we resolve these questions of religious freedom. So the first you know the I mean, really these lines just they cut through all of the piffle. And, and listen, I got really creative in American crusade and I refer to these as lines number one, lines number two and line number three. Right. So that's
essential. You worked hard on that. Yeah, I did. Well,
I will say one thing I tried to do in the book is I really tried to shun legal jargon. I wanted, I wanted anybody to be able to pick this book up, and recognize that the threat that we face, both from these Crusaders and from the Supreme Court here, so it was really important to me to not sound like a lawyer and not talk like a lawyer to people. I do want
to say, though, that the flip side of that is also true, that while that's the case, and I think you do it very successfully, it's also not a polemic, every chapter that you present, the first chapter is sort of philosophical principles. But every chapter you present is a case, you talk about the case, and you move from the precedential cases, to the cases that are that set the foundation for the shift, and then the more extreme cases and the consequences thereof. So on the one hand, it's a very accessible book, but it's also not a political polemic. Otherwise, I wouldn't have had you on the show to talk about it. And I think that's really important, because as I'm going to ask you, when you're done saying what you're saying, this really is about the Supreme Court, and about legal interpretation. And thats tremendously important because it's about our fundamental place in this country, as governed as people governed by the law. Right. So I'm sorry, I just wanted to I didn't want people to get the wrong impression of the book.
No, I mean, I appreciate that. And if you want, I mean, I'll, I'll write you the check for your cut. No, I really do appreciate that. Because I didn't want it to be that I tried very hard to. To be accurate and factual and everything I said, I actually I paid two other attorneys, a bounty for every factual error they could find for every misstatement or misquote that I had. So it was really important to me to be accurate, but also not to sugarcoat anything. And so just real quick, though, the three lines that we draw, you know, we distinguish between action and belief. That's line number one, your right to believe is absolute. But your right to act on that belief is not. And so that's Jesus take the wheel, that's, that's, you know, human sacrifice. And that brings us to the second line, which is, okay, clearly, the government can step in, at some point. Where is that? Okay. And we already talked about this, where the rights of others begin. Right, there's that old saying about your right to swing your fist, and where the other person's nose begin? Well, the same thing is true for religion, your right to swing your religion ends where the rights of others begin. Religion is not a license to harm or infringe anybody else's rights in any way. And then, line number three, I think a lot of people take for granted in this country, and you're about to get a real world lesson in what it's like to live without it. And that is the line between state and church. Our government has no religion to exercise, and government officials cannot abuse government power and resources to promote their personal religion. And unfortunately, that line is one that we see violated, wantonly in this country.
So then let's take a step back. And I want to ask you, how the Supreme Court operates and how it differs from our vision. Because we're often taught in school, that the Supreme Court clarifies laws, that the job of the Supreme Court is to tell us what laws mean. But that ignores the fact that what the Supreme Court does, even in the most neutral sense, is interpret laws. And interpretation is, of course, a subjective process. So we do talk a little bit about how the vision of the Supreme Court were given changes is different from how in your experience the Supreme Court actually operates.
It's such a such a good and important question. And I think it's one of the things that is advancing this crusade in a way that most Americans don't understand. And you're, you know, you're right that we're taught this myth about the Supreme Court. And John Roberts, during his confirmation hearings, famously gave this this analogy he basically said you were umpires all we do is call balls and strikes. And that's just that's nonsense. That's just just not true at all. And we have to unshackle our minds from the myth of this Supreme Court and this Supreme Court in particular, because it's been packed as a defender of the downtrodden as an impartial arbiter of truth and justice. The Crusade really does depend upon people believing this myth but Mitch McConnell, Donald Trump and Leonard Leo who I'll talk about in the book, they cheated and they stole and they packed courts to put their collaborators in place, not because they would administer justice even handedly, but because they wouldn't. Right. This is the court of Plessy versus Ferguson and separate is equal of Dred Scott and fugitive slave laws of trying to suffocate the New Deal in the cradle of gutting the power of the 14th Amendment One, with the blood of so many Americans during the Civil War, of Japanese internment camps of Muslim bans of billionaires and corporations and political gerrymandering and vote suppression of abolishing abortion and reproductive freedom in the name of narrow religious beliefs. So we really have to shed this myth that the court is out to protect us because it is not.
So use a lot of a lot of case names there. And I want to remind people, that there have been some insidious decisions right in the history of the Supreme Court decisions that let us in turn Japanese Americans just because of their ethnicity, decisions that argued that black people and white people could be segregated, which by the way, separate but equal, Clarence Thomas seems to support decisions that let a slave stay with their owner with his owner, even though he was in free territory. And that is often described as the Supreme Court got it wrong. But what you seem to be saying isn't that the Supreme Court got it wrong, but that the Supreme Court justices intended it to be what it was? And that's morally incorrect. Right? Those are two different positions. One position is the law states this thing, and they just made a mistake. But the other says these people intentionally did something that is morally unjustifiable, both within and outside the law. Is that Is that a fair adjustment of the terminology given what you're saying?
I think that's fair. I think we we think of the Supreme Court as this Vindicator of minority rights. We think of the Supreme Court as basically the war in court, you know, there's this, this great period of time where we get that Brown versus Board of Education decision, desegregating public schools, where we get that, you know, decisions like Gideon versus Wainwright which says that you have a right to counsel if you're accused of a crime. And you have the court actually doing what we think of it as its job as as Upholding justice as vindicating the rights of the downtrodden. And that's the view of the Supreme Court that we have in our minds as a country, I think. But that is not historically what our Supreme Court has done. That's like the court as an outlier. Historically, the court is a naughty, as you pointed out, in the beginning, not a conservative body, a retro aggressive body. And this court in particular, is just obsessed with history and tradition. And it's shedding all this precedent, and all of these important decisions, overturning our rights in the name of history and tradition, because it wants to drag us back to a time when conservative white Christian men
ruled. And I want to elaborate following that on something I just said in passing. You mentioned Brown versus Board of Education in the desegregation case, which is almost universally regarded as the single best case in the history of the Supreme Court, well written, really important life, you know, nation changing and morally justifiable. And if you believe most of the biographers of Clarence Thomas, he actually has historically both as a young person and sort of coded in his decisions, thought that separate but equal the only problem was separate but equal was that it wasn't equal, that you have an African American Supreme Court Justice, who at least is giving the signals that he believes in segregation. That's as regressive as you get. That says, I don't know, baffling as you get. So this isn't right. Again, right. To go back to the to our earlier examples. This is not being paranoid. This is not being conspiracy theorists. There are plenty of biographers and journalists who show that that that some of these justices have positions that are really counter to modern culture, let alone majority opinion.
Absolutely. And, you know, this court in particular is even worse than the historical standard of the court as a retrogressive body. Clarence Thomas is certainly one reason as is his wife, Ginny, and I get into some of that in American crusade as well. But Leonard Leo, I mentioned earlier is universally recognized as the man who orchestrated the hostile takeover of the Supreme Court. And that is what happened now. And that is why this court is so much different and so much more retrogressive and regressive, and conservative, whatever we want to call it than previous courts historically. So to a one former employee described Leonard Leo's mission like this, quote, he figured out 20 years ago that conservatives had lost the culture war, abortion, gay rights, contraception, conservatives didn't have a chance if public opinion prevailed. So they needed to stack the courts. And that is what they did. And notice, the anti democratic admission and goal in that quote, right, if they didn't stack the court, the majority would rule democracy would work. And we can't have that. And we know that Leo's group spent something like $550 million, packing the court from 2014 to 2020. And just a couple months ago, news broke that Leonard Leo's new group raised 1.6 billion, that's billion with a B, in one donation, that's $1 billion dollars more than he spent capturing the court. And so you will learn all about this in American crusade and in the update to American crusade, which is available for free online to anyone who buys the book. And you'll learn that his job Leo's job, when it came to the federal courts, for every Republican administration was he was described as quote, the monitor of the nominees ideological purity. Right, that is what his job was for these judges and all told, he is responsible for the confirmation of Roberts, Alito, Gorsuch, Cavanaugh and Barrett. And Thomas is an old friend, all six of them were members of the Federalist Society. I mean, there's video of Thomas and Leo joking on stage together about how Leo is the third most powerful man in America. So that is six votes on the Supreme Court. And Leo personally chose five of them for their ideology, and it is a crusader ideology. And I know that's a hard truth for a lot of people to swallow. But you have to.
So which which brings us to a sort of a foundational philosophical question about what the Supreme Court is supposed to do. Because, again, the way that it is often taught is that the Supreme Court is supposed to be immune to majority opinion, they have life appointments, so that they don't have to run for re election, that they look at the Constitution and precedent, and they're not interested in, you know, the waves of political opinion and cultural attitudes. The question that comes from that, though, is how much should? And then how much does the Supreme Court pay attention to the sort of majority rule notion of democracy? If you look at when the Supreme Court allowed for the legalization of gay marriage, one of the arguments was, culture has shifted so much, that gay marriage just became non controversial. And I know that's certainly true among my students I used to, in my ethics class, I used to ask as the final paper, you know, can you justify gay marriage? Explain blah, blah, but I don't do that anymore, because they find the topic boring. So one of the arguments has been that what the Supreme Court actually does is codify cultural shifts. How much of that is true? And how much should the Supreme Court attend to majority opinion and, and moral discoveries?
Well, it's certainly not true. But the Supreme Court and the Obergefell decision, which which codified marriage equality, would come out very differently right now, that decision would not come down that way. Today,
there are upset so in their decisions, right, they have said, so
you can count the votes on the Supreme Court and marriage equality absolutely does not come down. That same way. You know, people forget, like John Roberts who's kind of being treated or feted lately as this this centrist, or maybe not as conservative as people think, which is fundamentally not true. And I get into that in American crusade. But he also, occasionally justices, when they are really motivated and moved by a case they will read parts of their decisions from the bench. And you get some of the best moments in Supreme Court rhetoric when they are reading their dissents from the bench. And the only time John Roberts has ever read a dissent from the bench was when he read his dissent in Obergefell. And you can actually go listen to it today. And you can he is an angry man. So I mean, this this court, this court is out to enshrine minority rule, not to you know, codified majority shifts majoritarian shifts in the culture. And you can let me Probably the best example is the one that's on everybody's mind and the dogs decision, right, like abortion is very popular, you know, something depending on how you ask the question something like 70% of the country support the right to an abortion. And the Court gutted that, right? I mean, just just absolutely shredded it. They are shredding the Voting Rights Act. There's the Voting Rights Act case before the court, again, this term, smelled they already did it in Shelby County and in Rio versus Common Cause, right, because they are working to enshrine minority rule, because circling back to the beginning of our conversation, and this is all about reclaiming that power and privilege of the dwindling majority, right that that conservative white Christian cast that was used to that power and use to that deference in which is seeing it disappear, and is working to weaponize religious freedom as a way to reclaim it and captured the court as a way to reclaim that.
What when Roberts read his dissent, he said, and I'm paraphrasing, because I don't have it in front of me. He said something like every society throughout history, all of them have recognized marriage as one man and one woman throughout history. Now, that's blatantly untrue. It's not biblically true, it's not historically true and 30 seconds of history will show that but so then the next question I have is, What about facts? Right, surely, right. This is this is a polemical moment. But surely the Supreme Court has to abide by the facts of the matter. And so this is interpretation of reality. And maybe your position is being your position. You're a little extreme, Andrew, and you're just misreading the facts. How does the Supreme Court deal with what is true and what is not in the facts of cases before the decision?
You know, that's such an important question. And it's one of the reasons that I've actually stopped litigating cases. You know, I am, I'm a lawyer by training. I have litigated the case after case I have lived these cases, this fight has been my whole career, right? I litigated some, I briefed others, I have been on the frontlines defending our country from this assault. American crusade tells the true stories behind those cases. And part of it is that I have this firsthand knowledge. So I can tell you what really happened because I was there for a lot of this, but but I've actually stopped litigating cases, because reality and facts don't matter to this court. And that is one of the things that I've had found so disheartening, and it has shattered so many of my illusions, and I can trace, and I do this in the book, some of the decisions where that happened. I remember I remember the first time I noticed that it was in a 2014 case called town of Greece versus Galloway. And the town of Greece had hosted these Christian prayers at every one of their meetings. And a really important question, legal question of the case was, well, who are the prayers for? Are they for the people who are attending the meetings? Or are they for the members of the council, and the prayer giver would come up to the podium, which members of the town would then use to speak to the council during things like public comment and stuff. So you know, this is how citizens talk to the council. So it's facing the day is where you have the official sitting, and the prayer giver would come up and turn that podium around to face the citizens themselves, turn his back on the council. And the Supreme Court, in the majority opinion, just change that fact. And they say very clearly, those prayers are directed at citizens like you could not get a more perfect example, a more perfect fat fact, to show that they are directed at citizens. And the Supreme Court just changed it and said, very clearly these prayers are for the members of the council. And that was just a lie. It was just, it was a small lie. But it changed reality. It ignored what happened to reverse engineer a politically palatable result to get the court to the decision that it wanted. It just changed the facts. And that has only gotten worse, as we have moved on. And it's gotten. I mean, it's gotten significantly worse. There was a case that people will remember this term about a coach that imposed Christian prayers on other people's kids at public high school football games. And in that case, it was brought by a crusader called First Liberty Institute and one of the lower court judges warned, warned that for First Liberty Institute was selling ace this is a quote from the court said I seductive song of the sirens being tied to the mast right and saying don't succumb to the siren song of a deceitful narrative of this case spun by the appellant by excuse me by counsel for the appellant right by first liberty. And that is the court saying that First Liberty is a group of liars. And if a court said that about me, I would run it I would bury my head in the sand, I would, I would question whether or not I should be practicing law, I would seriously I would then be a moment of very serious introspection. And instead First Liberty Institute appealed to the Supreme Court.
And they knew that the justices that were packed onto that court would be a receptive audience for that deceitful narrative. And that is exactly what they found. And the Court adopted, the US Supreme Court adopted this entire fiction about this coach, just giving these these prayers were just personal and private moments for him, not him actually imposing religion on other people's kids, which was all over the record, not kids feeling like they had to pray to play which was all over the record, not members of the public rushing the field to support the coach and bowling over members of the band students who were in the band and cheerleaders, which was all over the record. Right. And the Court Justice Gorsuch writing just adopted those lines. It was this magical recasting of reality. They lied to us, they lied to us and to posterity. And so much so that Justice Sonia Sotomayor put photographic evidence in her dissent to that case, which I've never seen in a dissent before showing that this coach was imposing prayer on other people's kids. And that is where we are right now. When the court doesn't like the facts or when the facts get in the way of the court weaponizing religious freedom, it just rewrites reality.
You talked about the Warren Court and and we mentioned, Brown versus Board of Education, and Thurgood Marshall, one of the most respected and impressive Supreme Court justices in history, brilliant board versus Brown versus Board of Education does change radically our interpretation of the law. Other Other things do as well. So couldn't someone come along and say, both liberal and conservative justices and reactionary justices, they all change the law, you object to the change? Because it's your worldview? Right. So why is Brown versus Board of Education, a constitutionally a justifiable cultural and legal change? Whereas, say, the Hobby Lobby decision isn't what what are we missing in the process that allows us to have a legitimate standard for when things have to change?
We I think that's that's certainly an argument that is being made and has been certainly it's been lobbed against me. And I think it's crucial to zoom back out, get that 30,000 foot view and remember that this crusade is a quest to remake a protection into a weapon for maintaining a dominant groups status. And it is the expansion of equality and the the withering of racial and religious hegemony. That's the contested territory in many of these religious freedom cases. Again, this is the we're talking about deeply conservative Christians accustomed to deference and privilege. And they feel that these expansions of freedom as in Brown versus Board of Education, violate their rights, right. But But parody is not oppression, equality, even when it means the erosion of privilege is not discrimination. And into truth be told we're not actually expanding rights or giving new rights in cases like brown. We are recognizing rights that have always existed under the law, but were never enforced. We are affirming the humanity of our brothers and sisters and siblings and admitting that we've been wrong. So as we realize the the aspirational values that are implicit in We the People and equal justice under law, and all are created equal and the other founding Maxim's right as we recognize that humans are human and worthy of rights. conservative white Christian America is During the slow demographic death, and it's rebelling, and they are raging against the dying of their privilege, and so they declared war. Now, I don't think that recognizing equality, that the self evident truth that all are equal that we the people means all the people are the same as declaring the opposite of that. I think there are there are fundamentally two different sides here. Yes, but one is equality. And one is privilege. And I don't think if you ask anybody in this country where they stand, they're going to say, I stand against equality, even though we certainly know a lot of them do.
One of the differences, let's say, between the Brown versus Board of Education decision, and the and I keep falling on my head, the cake, the bakery cake decision, masterpiece, cake shop, thank you, is that Brown versus Board of Education makes integration makes everybody more free. Whereas the masterpiece cake shop, creates a hierarchy and takes away people's access to things. And it seems to me that that's a litmus test, right? There are people who are going to say that integration doesn't make everyone more free, because you should have the right to live separately, and you should have the right to, and you have the right to believe those things, right, as you've pointed out, but at the core of the American experiment at the core of our country, is this idea that, that when we all live together, when we have a as John Rawls called it a shared fate, that we are all when we are more equal, we are more free. And that part of what you're arguing is that all of the decisions that you articulate in the book, actually make everyone less free, except for a very, very small group of people who want to dominate others. Is that a fair? alternative explanation?
I don't know that I would call it alternative. I think it's I think it's certainly it's a fair addition. Absolutely. And this is one reason that line number three is so important, right? That the separation of church and state is so important that because shielding our shared laws, from any from capture by any one religion frees us all to come together as equals to build a stronger democracy. And, and this is also the reason jack that I know that this is probably an alarming episode for a lot of folks. So let me inject a little ray of sunlight in here. This is the reason that I'm actually hopeful what we're talking about right now, because they are working, the Crusaders are working for themselves. Right, we are working to meet that unmet promise in the American Declaration of Independence in the US Constitution, those self evident truths, that all are equal, that we the people means all the people and in previous generations have failed to realize those aspirations, and they've left it to their children to contend with human tragedies like slavery and segregation and the subjugation of women and discrimination against LGBTQ people, and now the climate crisis. And as we continue to march toward that progress, Christian nationalists are fighting ever harder against it, and they're very clearly not going to go gently, they're going to rage, rage against the dying of their privilege, but in the end, we will win. And that is because they fight only for themselves. And where they are selfish, we are selfless. We fight for we the people. And this is one of the reasons that I'm so proud to work at Americans United for Separation of Church and State, Americans United fights for all we bring together people of every religious stripe, non believers, you name it, Americans United has folks involved with us fighting in the courts, in the legislatures, and the public square for what we're talking about, which is freedom without favor, and equality without exception. You know, so Americans United fights for all in our work allows Americans to come together as equals to build that stronger democracy, because democracy and equality and freedom all depend on the separation of church and state, and then the separation of church and state, in turn enables each of those values. So that's one of the reasons the well funded Crusaders are fighting so hard against au Americans United in particular, but that's also why I think in the end, we will triumph
that is optimistic enough that I think that's a good place to end. I mean, I have I have so many more questions. And but I also think that, you know, this was enough for people because Sometimes Sometimes this stuff takes a little a little while to process and making people fundamentally rethink one of the foundational institutions of the United States and the government. That's enough. So, Andrew, you know, I mean, it's not often we have a guest where we have to have a two parter when and actually we may have to have a three or four parter. But thank you so much for joining us on why I really appreciate it. Oh, is
it my absolute pleasure, Jack, I'm always happy to join you and I'll come back for parts four and five if we have to.
I hope those are all happy and positive discussions. You have been listening to Jack Russel Weinstein and Andrew Seidel on why philosophical discussion about everyday life. I'll be back with a few more thoughts right after this.
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You're back with why philosophical discussions about everyday life. I'm your host, Jack Russell, Once done, we were talking with Andrew Seidel, about the Supreme Court and the way in which one particular group is trying to adjust our definition of the separation of church and state. And one can interpret this conversation in a partisan fashion and one can deny the central premises. And that's everyone's right. And everyone has has the ability and the opportunity to challenge or disagree with anything that happens on the show. That's part of the point. But I think at the core of all of this is one of the great questions. And that is, what does America mean? And when we ask what is America mean? We're actually asking, what is democracy mean? What does individualism mean? What is freedom, and what is equality mean? And in the history of the 200, some odd years of the American experiment, and the French democratic experiment, and the German democratic experiment, and the Japanese democratic experiment in all of those is this notion that over time, with more knowledge and collective participation, people will be more equal and more free. And that includes more people, a diverse people, a pluralistic people, and an integrated people. The vision of what a democratic just society is, is of people of different origins of different nationalities, of different ethnicities, of different religions, of different sexuality, of everything participating in a conversation as to how to self govern. And if there is an institution that can block that, that institution needs to be rethought. That could be Congress, it could be the presidency, it could be the Supreme Court. And right now, it's the Supreme Court that's in our lens. Right now, we have to ask, is the Supreme Court co opted? Is it illegitimate? And has it made decisions that run counter to the spirit of the American experiment? Now, that's a decision for you to make yourself that's a decision that you can act on you can vote on you can talk about, you can write about all of those things. But Andrews point is compelling. And Andrew presents evidence that is in arguable, there are decisions that are being made that radically privilege not just one religion, but one small group of people with political intentions within a diverse religion have different beliefs. And if the Supreme Court is in fact, prioritizing that over everyone else, it's time to take a step back and figure out what we need to do about it. Because no one how big or how small, has the right to co opt the freedom and the equality and the moral meaning of democracy. Rate us on iTunes and Spotify to help spread the word about the show. And please help us continue to broadcast by contributing at wire radio show.org Click donate in the upper right hand corner. We exist solely based on your donations. I'm Jack Russell. Weinstein, thank you for listening. We're grateful to have you as an audience and as always, it's an honor to be with you.
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