Respecting Religion

The Supreme Court is about to hear arguments in a type of case it usually addresses in its emergency or "shadow" docket: Questions surrounding clergy and religious exercise in the execution chamber. Amanda and Holly review the issue by considering cases over the past few years, including how the justices have shifted over time, with strong words from Justice Elena Kagan and the arrival of Justice Amy Coney Barrett. In segment two, they dive into the first religious liberty case the Court will hear oral arguments this term in Ramirez v. Collier (starting at 14:50), including the statute at the heart of the case: RLUIPA. In segment three, Amanda and Holly step back to discuss their personal experiences visiting death row early in their legal careers.

Show notes:

Segment 1: Recapping the past few years of clergy in the death chamber (starting at 00:51)

Visit the website of the Death Penalty Information Center for statistics and research around the death penalty and its application.

The Religious Land Use and Institutionalized Persons Act is often abbreviated "RLUIPA." Learn more at BJConline.org/RLUIPA.

Visit the latest news section of our website to read about previous Supreme Court cases involving clergy in the execution chamber.

Amanda Tyler wrote a 2019 column for Religion News Service about the different outcomes in the Dunn v. Ray (Alabama) and Murphy v. Collier (Texas) cases. Read it at this link. 

Segment 2: SCOTUS takes a case about clergy in the execution chamber on its regular docket  (starting at 14:50)

BJC joined this brief in the Ramirez v. Collier case with the Christian Legal Society and other groups. Read more on our website.

Holt v. Hobbs was a 2015 case regarding a Muslim inmate's request to grow a one-half-inch beard in accordance with his faith. Learn more at BJConline.org/HoltvHobbs.  

Segment three: Personal reflections on visiting death row (starting at 28:10)

To learn more about the abolition of the death penalty in Virginia, check out this piece by Dakin Andone for CNN: Why Virginia's abolition of the death penalty is a big deal for the state and the US 

Amanda read from this piece by Elizabeth Breunig for The Atlantic: The State of Texas v. Jesus Christ

Linda Greenhouse asked the question "Why did the Supreme Court stop this particular execution?" in the New York Times.

Adamp Liptak previewed the Ramirez case for the New York Times in this article: Supreme Court Stays Execution in Dispute Over Pastor's Role in Death Chamber

Respecting Religion is made possible by BJC's generous donors. You can support these conversations with a gift to BJC. 

As we kick off season three of Respecting Religion, Amanda and Holly take a look at where we’ve been and the big cases the Supreme Court will hear this term. They dig into doctrinal shifts at the Court and recent studies about religion cases, explaining what the numbers don’t show. In segment two, they dive into the Supreme Court’s 2021 decision in Fulton v. Philadelphia (15:55), involving a faith-based group’s voluntary partnership with the government to administer a foster care program. The decision hinged on a single line in a contract, and they share why it’s not as sweeping a decision as the 9-0 outcome might make it seem. In the third segment, hear what Amanda, Holly, and BJC have been doing since we last gathered for a podcast — from new school routines to calling out Christian nationalism. 

SHOW NOTES:

Segment 1 (starts at 01:05): A humdinger of a term

The new podcast photo was taken during our BJC Fellows Reunion in February 2020. You can read about it in our spring 2020 magazine. Make sure you are subscribed to our new feed called Respecting Religion and not BJC Podcast.

Amanda was live on Instagram on the first day of the Supreme Court’s new term. You can watch a recording here. 

Amanda and Holly mentioned some previews of the upcoming term:

The Supreme Court’s conservatives cook up a stew of abortion, guns, religion and more by Nina Totenberg at NPR

Supreme Court docket shows growing role as arbiter of religious freedom by Pamela Manson at UPI

Back on the Bench, the Supreme Court Faces a Blockbuster Term by Adam Liptak at the New York Times

They also mentioned this article by Adam Liptak at the New York Times: An Extraordinary Winning Streak for Religion at the Supreme Court. You can find the study referenced in that article at this link.

Amanda read a quote from John Leland, a Baptist pastor in the late 18th/early 19th century, who famously said, “The fondness of magistrates to foster Christianity, has done it more harm than all the persecutions ever did. Persecution, like a lion, tears the saints to death, but leaves Christianity pure: state establishment of religion, like a bear, hugs the saints, but corrupts Christianity, and reduces it to a level with state policy.”

Segment 2 (starts at 15:55): Fulton v. Philadelphia

Learn more about the case of Fulton v. Philadelphia at this link, and read BJC’s brief supporting the city of Philadelphia here. Amanda and Holly discussed oral arguments in the case during season 2 of Respecting Religion. You can read Holly’s analysis of the case for SCOTUSblog at this link.

Read the decision by Chief Justice John Roberts and the 70-page concurrence by Justice Samuel Alito at this link.

To read about BJC’s involvement in the Masterpiece Cakeshop case and our brief filed supporting the state of Colorado, visit BJConline.org/Masterpiece.

Segment 3 (starts at 29:43): What else has been going on?

BJC hosted two webinars about the dangers of Christian nationalism in 2021:

Democracy and Faith Under Siege: Responding to Christian Nationalism (January 2021)

White Christian Nationalism: How Racism Undergirds Christian Nationalism (July 2021)

Read the statement supported by more than 23,000 Christians standing against Christian nationalism and add your name at ChristiansAgainstChristianNationalism.org.

You can also download a free curriculum on responding to Christian nationalism on the website.

Amanda recommended The Ezra Klein Show featuring a conversation with Ta-Nehisi Coates and Nikole Hannah-Jones. You can listen and read a transcript at this link.

Listen to the BJC Podcast series on the dangers of Christian nationalism and access discussion guides at this link, or visit our BJC Podcast feed and scroll back to 2019.

BJC hosted a “Voices of Faith Freedom” series throughout the year to hear various perspectives on faith freedom. You can view them on this page or by visiting BJC’s Facebook page.

Welcome to the new podcast feed for Respecting Religion! Join BJC Executive Director Amanda Tyler and General Counsel Holly Hollman for new conversations on religion and the law, including the most significant cases concerning religion and religious liberty at the U.S. Supreme Court. This season, they'll be discussing government funding of religious schools, the religious liberty rights of prisoners, Christian nationalism and flag flying, the continuing debates about religious exemptions to COVID-19 vaccination mandates, and more. 

As lawyers and people of faith, Amanda and Holly think these topics deserve respectful conversation -- something that we don’t always hear in the public square or in our social media feeds. 

Look for new episodes to be released each Thursday, starting October 21, 2021.

Race and religion are topics at the forefront of the U.S. Senate race in Georgia between Sen. Kelly Loeffler and the Rev. Dr. Raphael Warnock. On this bonus episode of Respecting Religion, we bring you a conversation between BJC Director of Education Charles Watson Jr. and Executive Director Amanda Tyler about what happens when ministers become candidates. In this dialogue broadcast live on December 2, they go beyond partisan politics and dive into the sensitive topics, discussing the implications of using sermons in attack ads, the power structure of whiteness, Christian nationalism, liberation theology, double standards and how you can’t ignore the racial components at play right now. Plus, they ask a serious question: How do the attacks against the Rev. Warnock compare to similar attacks on the Rev. Dr. Martin Luther King Jr. during his time?

Show notes:

You can watch this conversation on BJC’s Facebook page at this link.

Brian Kaylor of Word & Way wrote a story on the conversation, and you can read his article here. 

The Rev. Dr. Raphael Warnock was the keynote speaker for BJC’s 2016 symposium on religious liberty and the Black church, held at the Howard University School of Divinity. Watch his entire presentation here, and see a highlight video here.We also have a website page dedicated to the event: BJConline.org/HowardSymposium.

Read and sign the statement standing against Christian nationalism at christiansagainstchristiannationalism.org. 

Visit BJC’s page on resources related to race and religious liberty at this link.

The 2021 Religious Liberty Essay Scholarship Contest asks students to write about members of the clergy running for political office. Read the full writing prompt and details at BJConline.org/contest. It is open to all high school juniors and seniors, and entries are due March 26, 2021. 

If you would like to continue this conversation with your church or in other contexts about liberation theology or other topics discussed today, reach out to Charles Watson Jr.

In our season finale, we look to the future and the potential ways the Biden administration could impact religious liberty. Our guest for this episode is Melissa Rogers, former executive director of the White House Office of Faith-based and Neighborhood Partnerships during the Obama administration. Amanda, Holly and Melissa discuss the need for an administration to be organized at the outset and ready for issues that are going to impact religious liberty, both explicitly and implicitly. There is a key difference between an administration making unforced errors and actions that inflame the culture wars. Plus, the trio reviews the religious liberty impact of the Trump administration and the centuries of partnership between the government and religious organizations.  

Segment 1: Why do we need priorities for the next administration? (Starting at 00:47)

Melissa Rogers is the author of Faith in American Public Life, which is available wherever books are sold.

The report for the Brookings Institution written by Melissa and E.J. Dionne is titled “A Time to Heal, a Time To Build.” You can read it online. 

Melissa was previously on the BJC Podcast in 2019 alongside Rabbi David Saperstein and Holly Hollman during our series on the dangers of Christian nationalism. You can listen here and watch a video of the podcast here.

Amanda and Holly talked about the Trump administration’s record on religious liberty in episode 4 of this season. 

Segment 2: What does the next administration need to keep in mind? (Starting at 21:29)

Amanda mentioned this piece that Melissa wrote for The Washington Post: President Trump just unveiled a new White House ‘faith’ office. It actually weakens religious freedom.

Melissa mentioned the conversation BJC hosted in 2019 on an inclusive approach to religious liberty, featuring Amanda, Dr. Corey Walker, and Dr. Linda McKinnish Bridges. You can watch it at this link.  

Join the BJC Advocacy Team: BJConline.org/subscribe.

Join the BJC Book Club to participate in a group discussion as we read through Melissa’s book Faith in American Public Life. We will be meeting on Tuesday nights in January, and it’s free to join: BJConline.org/BookClub.

Segment 3: Thanks for a great year of Respecting Religion! (Starting at 45:02)

Thank you, listeners, for joining us for 26 episodes of Respecting Religion as we’ve navigated the twists and turns of 2020. We hope that we’ve met our goal of highlighting some of the most important questions and topics respecting religion in the context of all that this year has thrown at us — a global pandemic, reckoning with systemic racism and white supremacy, hugely consequential presidential election, shifts in the Supreme Court and more. This year has taken us all on a wild ride, and we are glad we could slow down a bit and give these important stories their due. 

Subscribe to the BJC Podcast on your favorite platform to keep up with what’s next! We’re on all the major providers: Apple Podcasts, Spotify, SoundCloud, Amazon Music, Stitcher, and more.

This summer, the coronavirus pandemic raised novel new questions about religious freedom and government powers. Now, as we head toward winter, what have we learned? Amanda and Holly talk about the latest actions from this surprisingly emotional Supreme Court. Starting with Justice Samuel Alito’s November speech to the Federalist Society (starting at 08:12), they then break down the Thanksgiving eve decision that overturned New York Gov. Andrew Cuomo’s limits on worship in coronavirus hotspots (20:03) and talk about what it might mean for restrictions in other places. Learn more about what’s at stake for religious freedom in these court cases and the importance of comparing apples to apples.

Segment one: What’s happened in challenges to  government restrictions on in-person worship services so far? (starting at 00:47)

Amanda and Holly talked about the impact of the COVID-19 pandemic on religion and religious freedom in four episodes of season one of Respecting Religion:

Episode 6: Stay-at-home orders, religious freedom, and RFRA

Episode 8: Religious freedom in the age of coronavirus

Episode 10: Lawsuits challenging COVID-19 directives

Episode 14: Finding the right response to reopening

Holly mentioned two cases from earlier this year: South Bay United Pentecostal v. Newsom (California) from May and Calvary Chapel v. Sisolak (Nevada) from July.

Read more about the Thanksgiving eve decision in Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo (New York) on BJC’s website at this link.  

Amanda and Holly talked about the speech Justice Samuel Alito gave to the Federalist Society during the 2020 National Lawyers Convention on November 12. You can watch the entire speech at this link. The clip we played is from 35:05-35:41.

Segment two: Supreme Court sniping in the New York decision (20:03)

For a humorous take on comparing like things to like things, check out this editorial from Brian Kaylor, the editor of Word & Way: Treating Costco like my church.

The really important free exercise case at the Supreme Court this year is Fulton v. Philadelphia. Learn more at BJConline.org/Fulton.

Segment three: Individual liberty and the common good (40:32)

Holly mentioned this Religion News Service (RNS) story by Jack Jenkins: Biden says Americans can worship in person ‘safely.’ But what does that mean?

Amanda mentioned this op-ed by Pope Francis that came out on Thanksgiving Day in The New York Times: A Crisis Reveals What Is in Our Hearts

What do we make of the Trump legacy when it comes to religious freedom? Go beyond the sound bites and confusing statements as Amanda and Holly analyze what really happened over the past four years. They note areas of agreement, instances where religious language was used to divide, how high-level appointments mattered, proliferations of religious exemptions, Betsy DeVos and the shift of public funds to religious schools, and what it all means for the future of religious liberty in our country. 

Segment 1:  Divisive tactics and confusing statements (starting at 00:49)

Holly was in this NPR story by Tom Gjelten: Religious Freedom Arguments Give Rise To Executive Order Battle

For more on the protections of the Johnson Amendment, visit BJConline.org/JohnsonAmendment

Read Attorney General Bill Barr’s 2019 speech at Notre Dame Law School at this link.

Read Secretary of State Mike Pompeo’s 2019 speech titled “Being a Christian leader” at this link.

In season one, Amanda and Holly talked about religion and the public schools on episode 3 and episode 19. 

For more on the president’s photo-op with a Bible, listen to episode 15 from season one.

Segment 2: Religious exemptions and the legacy of Betsy Devos (starting at 19:28)

Amanda and Holly discussed the contraceptive mandate in the Affordable Care Act last season in episode 20 and episode 12.

Listen to episode 2 from this season for a full discussion of the Fulton v. Philadelphia case or visit BJConline.org/Fulton

For more on the Trinity Lutheran case, visit BJConline.org/TrinityLutheran

For more on the Espinoza case, visit BJConline.org/Espinoza

Holly and Amanda mentioned the Department of Justice memo that didn’t say much about the Establishment Clause. Read it at this link. 

Segment three: Season of gratitude (starting at 38:53)

Thank you for joining us each week! We are taking Thanksgiving off, but join us again the first week of December. 

How did Christian nationalism show up on the campaign trail and at the ballot box? What is the possibility for religion to be a positive and unifying force for our politically divided country? How did President-elect Joe Biden talk about religion in his acceptance speech? Amanda and Holly look at religion and politics this election season — the good, the bad and the confusing.

Segment one: Christian nationalism in the 2020 election (starting at 00:52)

For more on the political ideology of Christian nationalism, visit BJConline.org/ChristianNationalism

Read and sign the statement at ChristiansAgainstChristianNationalism.org

Amanda mentioned two episodes from season one to take a deeper dive on Christian nationalism:

•         Episode 11: Christian nationalism during the coronavirus pandemic
•         Episode 15: Protests, the president, and the photo op with a Bible

For more on the speech by Vice President Mike Pence on Old Glory, read this Religion News Service story by Jack Jenkins and Emily Miller: Citing Scripture, Pence switches out Jesus for the American flag in convention speech

For more resources from BJC on the Johnson Amendment, visit BJConline.org/JohnsonAmendment

Amanda mentioned Andrew Whitehead and Samuel Perry and their book Taking America Back for God: Christian Nationalism in the United States

Read the one-page explainer on Christian nationalism at this link.

Samuel Perry tweeted about the importance of noting a voter’s proclivity toward Christian nationalism to see who they supported. Read his Tweet here.  

Holly mentioned the work of Robert P. Jones at PRRI about how the percentage of the voting populace that identifies as religious is shrinking. You can read their many different research studies on their website.

Amanda mentioned this opinion piece by Elizabeth Bruenig in The New York Times: Why Evangelicals Aren’t What They Used to Be

Segment two: Takeaways and what’s next (17:14)

For more on the video put out by Idaho lawmakers that included a handgun on a Bible, read this story by Nicole Blanchard in the Idaho Statesman: Idaho Republicans, including Lt. Gov. McGeachin, decry pandemic measures in new video

For an egregious example of Christian nationalism in a pseudo-religious setting, see this article in The Washington Post about Patriot Churches, written by Sarah Pulliam Bailey: Seeking power in Jesus’ name: Trump sparks a rise of Patriot Churches

Holly and Amanda discussed this article from The Washington Post Magazine by Richard Just: How Religion Can Help Put Our Democracy Back Together

Segment three: President-elect Biden and civil religion (33:50)

We played two clips from President-elect Joe Biden’s speech on Saturday, November 7, 2020. You can watch a video from CSPAN here.  

The BJC Podcast series on the dangers of Christan nationalism ran in 2019, and all 10 episodes are available here. You can access a podcast discussion guide here.

What’s at stake in the high-profile religious liberty case at the Supreme Court this term? Amanda Tyler and Holly Hollman break down the oral arguments in Fulton v. Philadelphia, which centers on whether a religious organization can apply its religious criteria to discriminate when operating as a government contractor delivering foster care services. They share four takeaways and speculate about what sort of decision we might see in the case. Plus, they take a look at how religion has been discussed in terms of voting this week, including problematic implications of a religious test for office. 

Segment one: What are the religious liberty issues at play in Fulton v. Philadelphia? (starting at 1:05)

For more on Employment Division v. Smith (1990) and the legislative response, visit BJConline.org/RFRA

Holly mentioned this story in the Washington Post by Michelle Boorstein: Religious conservatives hopeful new Supreme Court majority will redefine religious liberty precedents

BJC has a page dedicated to the Fulton v. Philadelphia case: BJConline.org/Fulton

Read BJC’s brief in the Fulton case at this link.

Segment two:  Four takeaways from the oral arguments (starting at 19:32)

You can listen to the oral arguments in Fulton v. Philadelphia via CSPAN at this link.  

We played three clips from the arguments:

• Justice Sonia Sotomayor speaking with Lori Windham, the advocate for Fulton (around 16:25 into the argument)
• Neal Katyal, the advocate for Philadelphia, talking about how Fulton’s position can lead to religions being against each other (around 1:18:04 into the argument)
• Justice Samuel Alito expressing outrage at government actors trying to impose their beliefs on religious actors (around 1:04:17 into the argument)

Learn more about the Masterpiece Cakeshop case on our website: BJConline.org/Masterpiece

Segment three: Religion and the election (starting at 44:56)

For more on the “no religious test” principle, read this article from Amanda Tyler, written in advance of the Amy Coney Barrett hearings. 

What did we learn about religious freedom from the Amy Coney Barrett hearings? To kick off season two of Respecting Religion, Amanda Tyler and Holly Hollman put the Senate’s confirmation hearings for Justice Amy Coney Barrett into context, spotlighting the religious freedom issues raised – or politicized – during the event. And, after so much talk about the Constitution’s prohibition on a religious test for office, they ask an important question: Who was imposing a religious test during the hearings? Plus, in segment three, they look at how religion is showing up in our world today, including in a controversy with one of the Hollywood stars named “Chris” and a recent statement by Pope Francis about civil unions.

Segment one: Barrett and Ginsburg, Cruz and Cornyn (starts at 1:09)

Amanda mentioned two pieces BJC wrote about the impact and legacy of Justice Ruth Bader Ginsburg:

• RBG: Defender of equality, principled dissenter, faithful supporter of religious liberty by Holly Hollman, published by Baptist News Global
• Ruth Bader Ginsburg’s legacy in upholding a key religious freedom law by Holly Hollman and Amanda Tyler,  published by The Christian Citizen

Click here to read BJC’s review of Judge Amy Coney Barrett’s church-state record, which was sent to the Senate Judiciary Committee before the hearings began. It includes questions BJC suggested that senators ask of her.

For clips of discussions of religious liberty during the two days of hearings that involved questions, check out these two articles by Don Byrd on the “Latest News” section of our website:

• In Day 2 of Amy Coney Barrett’s confirmation hearing, some religious liberty discussions, though little depth or insight
• Religious Liberty discussions on day 3 of Amy Coney Barrett’s confirmation hearing

Segment two: What did Judge Barrett say about religious freedom during her hearings? (17:43)

Read the most recent State of the First Amendment Survey at this link, published by the Freedom Forum Institute. It says only 4% of respondents can name “petition” as one of the five rights guaranteed by the First Amendment. 

Holly mentioned the travel ban issued by President Trump in his first week in office. Read more about that case, which eventually was heard by the U.S. Supreme Court as Trump v. Hawaii: BJConline.org/travelban

Holly mentioned the upcoming Fulton v. Philadelphia case, which focuses on nondiscrimination in government-funded foster care. Learn more at BJConline.org/Fulton

Holly recently presented during a webinar on the future of the Establishment Clause, hosted by the American Bar Association (ABA). You can watch it at this link. The ABA also did a seminar on the Free Exercise Clause, which is available at this link.

Amanda wrote a commentary about Article VI and the “no religious test” principle before the confirmation hearings began. You can read it at this link, published by Good Faith Media: 

This article from The Washington Post that includes the number of times “religion” was mentioned: Democrats’ non-persecution of Amy Coney Barrett. 

Segment three: Where did we see religion in our world? Recent discussions on religion and LGBTQ rights in our culture (38:40)

Holly mentioned the story surrounding Chris Pratt and his church’s stance on same-sex marriage. Here’s an article from The Washington Post: The latest celebrity cause: Defending the honor of Chris Pratt.

Read more on BJC’s website about the recent statement from Justice Clarence Thomas and Justice Samuel Alito about the Court reconsidering the Obergefell case in 2015 that upheld same-sex marriage. Statement from Justices Thomas and Alito on religious liberty and same-sex marriage makes tensions worse

Amanda mentioned this New York Times article about Pope Francis and his recent support of civil unions: In Shift for Church, Pope Francis Voices Support for Same-Sex Civil Unions