1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,240 --> 00:00:09,320 Speaker 1: The Supreme Court has accepted a case that could change 3 00:00:09,360 --> 00:00:13,720 Speaker 1: the landscape for religious rights and strength and First Amendment protections. 4 00:00:14,280 --> 00:00:18,000 Speaker 1: The Court is being asked to overturn boundaries established thirty 5 00:00:18,079 --> 00:00:21,840 Speaker 1: years ago. In a landmark decision, the justices will disside 6 00:00:21,840 --> 00:00:26,160 Speaker 1: whether Catholic Social Services can be excluded from Philadelphia's foster 7 00:00:26,200 --> 00:00:29,680 Speaker 1: care system because the group won't place children with same 8 00:00:29,720 --> 00:00:33,239 Speaker 1: sex couples. My guest is Richard Garnett, a professor at 9 00:00:33,240 --> 00:00:37,360 Speaker 1: Notre Dame Law School. Why is this case important enough 10 00:00:37,440 --> 00:00:40,800 Speaker 1: for the Supreme Court to have taken it? Yeah, well, 11 00:00:40,800 --> 00:00:43,199 Speaker 1: that's that's always the big question in these issues. You know, 12 00:00:43,240 --> 00:00:46,080 Speaker 1: the standard line is that they don't take cases just 13 00:00:46,120 --> 00:00:48,239 Speaker 1: to pat the lower courts on the heads. Often it 14 00:00:48,240 --> 00:00:50,640 Speaker 1: means to something about the decision that's caught their attention. 15 00:00:50,680 --> 00:00:53,120 Speaker 1: I think the most straight forward answer is that there's 16 00:00:53,159 --> 00:00:57,200 Speaker 1: a disagreement among the federal courts of appeals regarding a 17 00:00:57,280 --> 00:01:01,080 Speaker 1: fairly technical question of First him in doctrine. You have 18 00:01:01,200 --> 00:01:04,280 Speaker 1: the lower court in this case agreeing with the Ninth 19 00:01:04,280 --> 00:01:07,840 Speaker 1: Circuit out West on one way to interpret some of 20 00:01:07,840 --> 00:01:10,560 Speaker 1: the Supreme courts precedents, and then you have several other 21 00:01:11,000 --> 00:01:13,120 Speaker 1: courts of appeals that have lined up on the other side. 22 00:01:13,160 --> 00:01:16,280 Speaker 1: And that's one of the sort of standard situations when 23 00:01:16,319 --> 00:01:18,959 Speaker 1: the Justices will weigh in when they need to clear 24 00:01:19,040 --> 00:01:21,040 Speaker 1: up a disagreement among the lower courts. So I think 25 00:01:21,040 --> 00:01:25,280 Speaker 1: that's the most straightforward possibility. A second possibility is intriguingly 26 00:01:25,760 --> 00:01:29,240 Speaker 1: presented by another one of the questions presented in the briefs, 27 00:01:29,240 --> 00:01:32,080 Speaker 1: and that is whether the Supreme Court should take another 28 00:01:32,160 --> 00:01:36,600 Speaker 1: look at this thirty year old decision called Employment Division 29 00:01:36,720 --> 00:01:40,640 Speaker 1: versus Smith, which is kind of the basic foundational Supreme 30 00:01:40,680 --> 00:01:44,880 Speaker 1: Court precedent when it comes to exemptions for religious exercise. 31 00:01:45,440 --> 00:01:48,440 Speaker 1: And you know, scholars have been criticizing the Smith decision 32 00:01:48,680 --> 00:01:50,880 Speaker 1: ever since the day it was announced, and at least 33 00:01:51,200 --> 00:01:54,080 Speaker 1: thirty years ago, there was agreement among many scholars on 34 00:01:54,160 --> 00:01:57,120 Speaker 1: the political right and the political left, although some of 35 00:01:57,160 --> 00:01:59,440 Speaker 1: those views have kind of migrated over time. But if 36 00:01:59,440 --> 00:02:02,320 Speaker 1: they want to, the Justices could use this case as 37 00:02:02,360 --> 00:02:05,880 Speaker 1: an opportunity to to revisit that old decision. I suppose 38 00:02:05,920 --> 00:02:09,640 Speaker 1: one one standard line about Chief Justice John Roberts and 39 00:02:09,760 --> 00:02:12,920 Speaker 1: his court is that he often prefers to take the 40 00:02:13,080 --> 00:02:17,399 Speaker 1: narrower approach to a question rather than the broad sweeping one. 41 00:02:17,520 --> 00:02:19,800 Speaker 1: And if that's true here, then they might decide that 42 00:02:20,000 --> 00:02:23,560 Speaker 1: it's enough for this case simply to resolve the disagreement, 43 00:02:23,560 --> 00:02:26,160 Speaker 1: but among the lower courts, rather than you know, reopening 44 00:02:26,200 --> 00:02:28,720 Speaker 1: this thirty year old case. But I imagine you'll see 45 00:02:28,720 --> 00:02:32,519 Speaker 1: a whole lot of commentary and amicus briefs from religious 46 00:02:32,520 --> 00:02:36,160 Speaker 1: liberty scholars talking about the possibility of of a substantial 47 00:02:36,240 --> 00:02:38,520 Speaker 1: change in this area. Before we get into the weeds, 48 00:02:38,919 --> 00:02:41,000 Speaker 1: tell us what the issue is in the case. The 49 00:02:41,040 --> 00:02:45,000 Speaker 1: basic issue, well, the issue is whether a Catholic foster 50 00:02:45,080 --> 00:02:49,040 Speaker 1: care agency, Catholic Social Services, may be excluded by the 51 00:02:49,080 --> 00:02:52,840 Speaker 1: City of Philadelphia from certifying and placing kids in foster 52 00:02:52,919 --> 00:02:57,280 Speaker 1: care because the Catholic Social Services has a policy of 53 00:02:57,520 --> 00:03:01,120 Speaker 1: not referring for same sex couple and so the City 54 00:03:01,120 --> 00:03:04,560 Speaker 1: of Philadelphia, when they learned that Catholic Social Services had 55 00:03:04,600 --> 00:03:07,880 Speaker 1: this policy, they moved in various ways. And one of 56 00:03:07,919 --> 00:03:10,080 Speaker 1: the disputes in this case is the various ways that 57 00:03:10,080 --> 00:03:12,600 Speaker 1: Philadelphia did try to do this. But they moved to 58 00:03:12,680 --> 00:03:16,400 Speaker 1: say that if Catholic Social Services had this policy, this 59 00:03:16,800 --> 00:03:20,840 Speaker 1: religion based policy, that they could no longer be involved 60 00:03:20,880 --> 00:03:24,320 Speaker 1: in foster care placements. And so there are some some 61 00:03:24,440 --> 00:03:27,360 Speaker 1: foster parents who have worked with Catholic Social Services in 62 00:03:27,360 --> 00:03:30,880 Speaker 1: the past, you know, longtime foster parents who are challenging 63 00:03:31,000 --> 00:03:33,480 Speaker 1: Philadelphia's actions, and one of the things they're saying is 64 00:03:33,520 --> 00:03:38,400 Speaker 1: that it's unconstitutional for Philadelphia to target Catholic Social Services 65 00:03:38,440 --> 00:03:43,080 Speaker 1: for exclusion like this simply because they dislike or disagree 66 00:03:43,120 --> 00:03:46,760 Speaker 1: with the religious position that Catholic Social Services has, which 67 00:03:46,800 --> 00:03:49,920 Speaker 1: is that they want to place kids in opposite sex 68 00:03:50,160 --> 00:03:55,080 Speaker 1: couple situations. But aren't there rules in Philadelphia rules against 69 00:03:55,240 --> 00:04:00,360 Speaker 1: discrimination in Philadelphia, and the Catholic foster agency are not 70 00:04:00,920 --> 00:04:05,160 Speaker 1: giving foster kids to gay couples. Is a violation of 71 00:04:05,240 --> 00:04:08,080 Speaker 1: those rules. Yeah, so there's two layers here. The first 72 00:04:08,160 --> 00:04:12,160 Speaker 1: layer is it's actually not clear that the relevant rules 73 00:04:12,160 --> 00:04:17,400 Speaker 1: and regulations in Philadelphia actually did prohibit this kind of 74 00:04:17,560 --> 00:04:20,520 Speaker 1: selectivity on the part of foster care agencies. That's kind 75 00:04:20,520 --> 00:04:22,400 Speaker 1: of business in the weeds, and we probably don't want 76 00:04:22,400 --> 00:04:25,280 Speaker 1: to go into it. But Philadelphia invoked sort of four 77 00:04:25,320 --> 00:04:29,600 Speaker 1: different successive reasons why CSS Catholic Social Services needed to 78 00:04:29,640 --> 00:04:32,520 Speaker 1: be excluded. There is a question really of whether Catholic 79 00:04:32,520 --> 00:04:35,279 Speaker 1: Social Service was actually violating the rules in the first place. 80 00:04:35,320 --> 00:04:37,799 Speaker 1: But if they were, or if they are in violation 81 00:04:38,080 --> 00:04:42,320 Speaker 1: of a general rule against any kind of discrimination in 82 00:04:42,400 --> 00:04:45,760 Speaker 1: terms of placement, then cathol Social Services is asking the 83 00:04:45,760 --> 00:04:49,320 Speaker 1: court to say, well, that's fine, Philadelphia can have that rule, 84 00:04:49,480 --> 00:04:54,800 Speaker 1: but if that rule imposes a substantial burden on religious exercise, 85 00:04:55,480 --> 00:04:58,360 Speaker 1: then they're entitled to an exemption from that rule. Now 86 00:04:58,400 --> 00:05:00,200 Speaker 1: to get to that point, you'd have to overrule the 87 00:05:00,200 --> 00:05:02,520 Speaker 1: court's decision in Smith. The third point, I know, I 88 00:05:02,560 --> 00:05:04,040 Speaker 1: said they were only two, but I like a lot 89 00:05:04,040 --> 00:05:09,280 Speaker 1: of professis the third is that Catholic Social Services is 90 00:05:09,360 --> 00:05:15,799 Speaker 1: arguing that Philadelphia doesn't really enforce this alleged rule against nondiscrimination, equally, 91 00:05:15,839 --> 00:05:19,719 Speaker 1: that they do allow various foster care placement agencies to 92 00:05:20,000 --> 00:05:23,560 Speaker 1: make exceptions to make referrals, because Catholic Social Services position 93 00:05:23,600 --> 00:05:26,080 Speaker 1: is that they'll always refer people like the same sex 94 00:05:26,120 --> 00:05:27,839 Speaker 1: couple who wanted to get involved in foster care, they 95 00:05:27,880 --> 00:05:30,120 Speaker 1: always refer them to another agency, so there wouldn't be 96 00:05:30,120 --> 00:05:32,560 Speaker 1: a question of preventing the same sex couples from being 97 00:05:32,560 --> 00:05:35,000 Speaker 1: able to participate. And what CSS is saying is, you know, 98 00:05:35,000 --> 00:05:38,240 Speaker 1: Philadelphia is not really enforcing this equally against all foster 99 00:05:38,279 --> 00:05:41,279 Speaker 1: care agencies. They're singling us out, and therefore that violates 100 00:05:41,320 --> 00:05:44,120 Speaker 1: the First Amendment. So that's the position. And as I 101 00:05:44,120 --> 00:05:46,200 Speaker 1: said a second ago, the Court could kind of take 102 00:05:46,240 --> 00:05:49,440 Speaker 1: a broad view and say, look, Philadelphia rules, if they 103 00:05:49,480 --> 00:05:52,720 Speaker 1: burden religious exercise, they have to satisfy a very demanding 104 00:05:52,880 --> 00:05:55,080 Speaker 1: standard we call strict scrutiny. Or they could take a 105 00:05:55,120 --> 00:05:58,479 Speaker 1: more narrow approach and say, the First Amendment doesn't allow 106 00:05:58,560 --> 00:06:02,080 Speaker 1: Philadelphia to kind of thing allowed Catholic Social Services for 107 00:06:02,120 --> 00:06:04,840 Speaker 1: this kind of special exclusion just because they disapprove of 108 00:06:04,880 --> 00:06:07,880 Speaker 1: their policy. I've been talking to Richard Garnett, a professor 109 00:06:07,920 --> 00:06:11,080 Speaker 1: at Notre Dame Law School, about the Supreme Court accepting 110 00:06:11,120 --> 00:06:14,600 Speaker 1: a major new religious rights case, agreeing to decide whether 111 00:06:14,680 --> 00:06:18,920 Speaker 1: Catholic Social Services can be excluded from Philadelphia's foster care 112 00:06:19,000 --> 00:06:23,320 Speaker 1: system because the group won't place children with same sex couples. Rick, 113 00:06:23,360 --> 00:06:25,120 Speaker 1: I want to get back to the case of Employment 114 00:06:25,160 --> 00:06:29,960 Speaker 1: Division versus Smith, decided by conservative Icon Justice and in 115 00:06:30,000 --> 00:06:36,240 Speaker 1: Scalia last year. The courts foremost conservative members, Justices Clarence Thomas, 116 00:06:36,240 --> 00:06:41,120 Speaker 1: Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, signal they were 117 00:06:41,160 --> 00:06:44,640 Speaker 1: open to reconsidering that decision. Yeah, this is an area 118 00:06:44,680 --> 00:06:47,760 Speaker 1: where sometimes the kind of conservative and liberal labels that 119 00:06:47,800 --> 00:06:51,440 Speaker 1: we use aren't particularly helpful. So in the Smith case, 120 00:06:51,760 --> 00:06:54,080 Speaker 1: you're right, it was authored by Justice Scalia, and that 121 00:06:54,200 --> 00:06:57,160 Speaker 1: was a decision that said, look, the government's allowed to 122 00:06:57,600 --> 00:07:02,200 Speaker 1: apply neutral, generally applicable rules across the board as long 123 00:07:02,240 --> 00:07:04,719 Speaker 1: as it's not discriminating against religion. You don't have a 124 00:07:04,720 --> 00:07:07,120 Speaker 1: constitutional right to an exemption. But he was joined in 125 00:07:07,120 --> 00:07:10,560 Speaker 1: that opinion by quote unquote liberal icon John Paul Stevens. 126 00:07:10,680 --> 00:07:12,800 Speaker 1: And you know, on the other side, you had conservatives, 127 00:07:12,840 --> 00:07:15,640 Speaker 1: say Sandra Day O'Connor, but you also had liberal justices, 128 00:07:15,680 --> 00:07:20,160 Speaker 1: And there's been historically kind of agreement across ideological lines 129 00:07:20,280 --> 00:07:23,000 Speaker 1: that in order to protect religious freedom, you do sometimes 130 00:07:23,120 --> 00:07:27,240 Speaker 1: need to give religious believers exemptions from general laws, whether 131 00:07:27,280 --> 00:07:30,000 Speaker 1: those laws or things like imagine a rule that requires 132 00:07:30,000 --> 00:07:33,560 Speaker 1: you to have a bare head in your driver's license photo. Well, 133 00:07:33,600 --> 00:07:37,240 Speaker 1: what if somebody has a religious obligation to cover his 134 00:07:37,360 --> 00:07:39,560 Speaker 1: or her head. It makes sense most people think to 135 00:07:39,600 --> 00:07:41,480 Speaker 1: provide an exemption in that case. But of course you 136 00:07:41,480 --> 00:07:44,360 Speaker 1: can't give exemptions to everybody who wants them, because then, 137 00:07:44,440 --> 00:07:47,440 Speaker 1: as Justice Lea said, you might well have chaos. It's 138 00:07:47,520 --> 00:07:50,280 Speaker 1: very hard to administer the rule of law when everybody 139 00:07:50,320 --> 00:07:52,120 Speaker 1: gets to decide whether or not they're going to follow it. 140 00:07:52,160 --> 00:07:54,480 Speaker 1: But that's kind of a in a way, a straw man. 141 00:07:54,560 --> 00:07:58,080 Speaker 1: I mean, the courts have for years now been working 142 00:07:58,080 --> 00:08:01,679 Speaker 1: with statutes like the Religious Freedom Restoration Act. What laws 143 00:08:01,760 --> 00:08:04,400 Speaker 1: like that do is they ask courts to basically balance 144 00:08:04,600 --> 00:08:07,040 Speaker 1: the needs of the government on the one hand, against 145 00:08:07,080 --> 00:08:09,920 Speaker 1: the needs of the religious dissenter on the other, and 146 00:08:10,000 --> 00:08:13,080 Speaker 1: to try to find again a balance a way to 147 00:08:13,240 --> 00:08:16,960 Speaker 1: advance both the government's important interests and to protect religious freedom. Now, 148 00:08:16,960 --> 00:08:19,520 Speaker 1: it does appear, as you mentioned, that some of the 149 00:08:19,560 --> 00:08:23,640 Speaker 1: current conservative justices have over the course of years, come 150 00:08:23,680 --> 00:08:25,920 Speaker 1: to think that Justice lee As opinion and Smith was 151 00:08:25,960 --> 00:08:28,240 Speaker 1: incorrect and could be interesting. If they've come to think that, 152 00:08:28,280 --> 00:08:30,160 Speaker 1: you know, you might think, well, they'll they'll join the 153 00:08:30,200 --> 00:08:32,760 Speaker 1: liberals and there'll be a decision overturning Smith that's like 154 00:08:32,960 --> 00:08:35,640 Speaker 1: eight to one. But because there's been some evolution in 155 00:08:35,679 --> 00:08:38,640 Speaker 1: the liberal justices thinking about religious freedom too, you might 156 00:08:38,720 --> 00:08:41,360 Speaker 1: end up, perhaps ironically, with kind of a switch on 157 00:08:41,400 --> 00:08:44,720 Speaker 1: this question. We will see. It seems as if the 158 00:08:44,880 --> 00:08:48,199 Speaker 1: likelihood is either that the court is going to overrule 159 00:08:48,280 --> 00:08:52,760 Speaker 1: Smith or rule in favor of the Catholic foster care agencies. 160 00:08:53,520 --> 00:08:57,320 Speaker 1: Is there any possibility that the rule against the Catholic 161 00:08:57,400 --> 00:09:00,360 Speaker 1: foster care agencies. Well, so, just to clare if I 162 00:09:00,360 --> 00:09:05,280 Speaker 1: on uh, they could rule for the Catholic Social Services 163 00:09:05,840 --> 00:09:08,800 Speaker 1: Agency on a number of different grounds, and some would 164 00:09:08,800 --> 00:09:11,280 Speaker 1: be more narrow than the others. If if they overruled Smith, 165 00:09:12,320 --> 00:09:14,960 Speaker 1: I think that would mean they probably would say that 166 00:09:15,000 --> 00:09:18,000 Speaker 1: the Catholic foster Care Agency has a right to an exemption. 167 00:09:18,480 --> 00:09:22,120 Speaker 1: But certainly they could decide, look, Smith has been the 168 00:09:22,160 --> 00:09:25,480 Speaker 1: law for thirty years, and under Smith, the Catholic Social 169 00:09:25,480 --> 00:09:30,680 Speaker 1: Services foster care program loses. They could say Philadelphia does 170 00:09:30,760 --> 00:09:35,960 Speaker 1: have a general rule. That rule does apply to this context, 171 00:09:36,000 --> 00:09:38,440 Speaker 1: the foster care context. They could say there hasn't been 172 00:09:38,480 --> 00:09:42,600 Speaker 1: any kind of targeting or discrimination against Catholic Social Services 173 00:09:42,600 --> 00:09:45,240 Speaker 1: because of their religious views and because of the government's 174 00:09:45,280 --> 00:09:47,640 Speaker 1: disagreement with those views, and therefore they lose. But I 175 00:09:47,679 --> 00:09:51,080 Speaker 1: think most court watchers expect that. You know, again, they 176 00:09:51,080 --> 00:09:54,720 Speaker 1: wouldn't have taken the case if they had that view, because, 177 00:09:55,000 --> 00:09:58,120 Speaker 1: after all, the Catholic Social Services had already lost below, 178 00:09:58,160 --> 00:10:00,200 Speaker 1: there really wouldn't be any need to take the ace 179 00:10:00,280 --> 00:10:02,440 Speaker 1: if they were just going to agree that they should lose. 180 00:10:02,600 --> 00:10:04,719 Speaker 1: So that's why I think there's going to be a 181 00:10:04,720 --> 00:10:08,040 Speaker 1: whole lot of interest in this case across the political spectrum, 182 00:10:08,080 --> 00:10:11,920 Speaker 1: because there are academics who believe that Smith was wrongly 183 00:10:11,960 --> 00:10:18,160 Speaker 1: decided and who think anti discrimination law should apply forcefully 184 00:10:18,240 --> 00:10:21,520 Speaker 1: in contexts like this. Um, so there'll be there'll be 185 00:10:21,559 --> 00:10:24,199 Speaker 1: a lot of interest. This seems to be another case 186 00:10:24,360 --> 00:10:28,640 Speaker 1: of religion versus gay rights, and I suspect that many 187 00:10:28,720 --> 00:10:34,880 Speaker 1: in the LGBTQ community see it as religion discriminating against them. Yeah. Well, 188 00:10:35,040 --> 00:10:37,959 Speaker 1: it's certainly true that these days a number of our 189 00:10:38,240 --> 00:10:42,199 Speaker 1: religious freedom conflicts do involve at tension between the kind 190 00:10:42,240 --> 00:10:46,320 Speaker 1: of religious commitments of some more traditional groups and believers 191 00:10:46,360 --> 00:10:49,559 Speaker 1: on the one hand, and non discrimination law that applies 192 00:10:49,960 --> 00:10:52,040 Speaker 1: on the basis of sexual orientation on the other. So 193 00:10:52,080 --> 00:10:54,240 Speaker 1: that's the fact we saw that Masterpiece cake shop, We've 194 00:10:54,240 --> 00:10:56,080 Speaker 1: seen it in a lot of other cases around the country. 195 00:10:56,280 --> 00:10:59,280 Speaker 1: Doesn't appear that that conflict is gonna go away anytime soon. 196 00:10:59,559 --> 00:11:01,199 Speaker 1: At the same time, this issue is a lot bigger 197 00:11:01,200 --> 00:11:03,760 Speaker 1: than that tension, and I think it's really important to 198 00:11:03,800 --> 00:11:07,040 Speaker 1: underscore that there's a tendency in some newspaper coverage to 199 00:11:07,080 --> 00:11:10,000 Speaker 1: act as though the only religious exemptions cases that are 200 00:11:10,000 --> 00:11:13,040 Speaker 1: out there are cases involving gay rights and same sex 201 00:11:13,080 --> 00:11:15,320 Speaker 1: marriage and so on, and in fact, such cases are 202 00:11:15,520 --> 00:11:18,360 Speaker 1: a very small percentage of the number of exemption cases 203 00:11:18,360 --> 00:11:20,480 Speaker 1: that actually come up. It's much more common to have 204 00:11:20,640 --> 00:11:24,079 Speaker 1: exemptions cases involving someone who needs to wear religious headcovering, 205 00:11:24,160 --> 00:11:26,480 Speaker 1: or perhaps need to have a special accommodation to be 206 00:11:26,520 --> 00:11:30,319 Speaker 1: able to comply with a religious dietary obligation, or needs 207 00:11:30,320 --> 00:11:33,079 Speaker 1: to have a foot washing station in a public university 208 00:11:33,080 --> 00:11:35,320 Speaker 1: because of a religious need. Again, it's it's a really 209 00:11:35,360 --> 00:11:38,960 Speaker 1: small subset of religious exemptions cases that involve gay rights, 210 00:11:38,960 --> 00:11:42,079 Speaker 1: and I worry that the focus on these cases can 211 00:11:42,120 --> 00:11:44,640 Speaker 1: cause some people to miss the underlying issue, which I 212 00:11:44,640 --> 00:11:47,440 Speaker 1: think is important and which matters again the people across 213 00:11:47,480 --> 00:11:50,920 Speaker 1: the political spectrum, and that is, in a complicated regulatory 214 00:11:51,040 --> 00:11:54,719 Speaker 1: society like the one we have that also has religious pluralism, 215 00:11:54,880 --> 00:11:59,480 Speaker 1: has religious disagreement, that has religious minorities, the only way 216 00:11:59,640 --> 00:12:02,640 Speaker 1: that we can be sure that the majority doesn't just 217 00:12:02,800 --> 00:12:06,040 Speaker 1: disregard the religious needs and the religious freedom of the 218 00:12:06,080 --> 00:12:10,760 Speaker 1: minority is to sometimes allow exemptions and accommodations. You know, 219 00:12:10,800 --> 00:12:14,000 Speaker 1: religious freedom doesn't only belong to people with whom we agree. 220 00:12:14,040 --> 00:12:16,840 Speaker 1: Religious freedom belongs to people whom we disagree. If we 221 00:12:16,880 --> 00:12:19,880 Speaker 1: agreed with them, these issues wouldn't come up. And so 222 00:12:20,240 --> 00:12:22,600 Speaker 1: I think it's important to kind of step back and 223 00:12:23,280 --> 00:12:25,840 Speaker 1: be sure we keep in view the broader question of 224 00:12:26,160 --> 00:12:29,520 Speaker 1: a diverse society. How do you provide adequate protection to 225 00:12:29,600 --> 00:12:33,679 Speaker 1: people whose religious beliefs might strike us as strange or 226 00:12:33,720 --> 00:12:37,040 Speaker 1: outdated or what have you. You mentioned Masterpiece cake Shop. 227 00:12:37,800 --> 00:12:42,679 Speaker 1: If the Supreme Court hadn't sort of decided not to 228 00:12:43,320 --> 00:12:47,880 Speaker 1: decide the major issue there, the real issue there, would 229 00:12:47,880 --> 00:12:50,520 Speaker 1: we still be having all these cases? I mean, could 230 00:12:50,600 --> 00:12:54,680 Speaker 1: the Court have set forth a definitive standard there? Well, 231 00:12:55,360 --> 00:13:00,040 Speaker 1: so yes, they probably could have. And um, you know, 232 00:13:00,120 --> 00:13:03,560 Speaker 1: the composition of the court has changed a bit since then, 233 00:13:04,320 --> 00:13:09,000 Speaker 1: but Matterpiece had some dimensions that are we're kind of 234 00:13:09,040 --> 00:13:11,320 Speaker 1: particular to it. If you if you remember in the 235 00:13:11,360 --> 00:13:14,959 Speaker 1: cake Shop case, um, the cake artist was not only 236 00:13:15,000 --> 00:13:19,360 Speaker 1: making a freedom of religion claim, he was also making 237 00:13:19,360 --> 00:13:24,520 Speaker 1: a free speech claim, arguing that, you know, to require 238 00:13:24,679 --> 00:13:31,640 Speaker 1: somebody to use their creative skills to endorse a message 239 00:13:31,640 --> 00:13:35,160 Speaker 1: with which they disagree that that violates the freedom of speech. 240 00:13:36,080 --> 00:13:38,840 Speaker 1: And you know, again, not all of these religious exemptions 241 00:13:38,880 --> 00:13:43,520 Speaker 1: cases have that that speech dimensions. So in a sense, 242 00:13:44,480 --> 00:13:48,480 Speaker 1: the new case from Philadelphia has the potential, I think too, 243 00:13:49,080 --> 00:13:51,160 Speaker 1: to sweep a little more broadly and to deal with 244 00:13:51,679 --> 00:13:56,240 Speaker 1: a wider range of distinctly religious claims than perhaps Cake 245 00:13:56,280 --> 00:14:00,760 Speaker 1: Shop did. And finally, could this case East lead to 246 00:14:00,960 --> 00:14:05,640 Speaker 1: a major shift, a major change in church state laws. Well, 247 00:14:05,640 --> 00:14:07,559 Speaker 1: it certainly could. I mean, if the court were to 248 00:14:07,720 --> 00:14:10,560 Speaker 1: reverse employment Division versus Smith. You know, that's putting aside 249 00:14:10,600 --> 00:14:13,040 Speaker 1: what's been the law for for thirty years. And now 250 00:14:13,200 --> 00:14:15,880 Speaker 1: it could be that that change would be relatively minor 251 00:14:15,920 --> 00:14:17,920 Speaker 1: in the sense that they would tweak Smith, but not 252 00:14:17,960 --> 00:14:20,080 Speaker 1: completely abandon it. But then there's also the potential that 253 00:14:20,080 --> 00:14:23,400 Speaker 1: they would, just as I said, clarify this disagreement between 254 00:14:23,400 --> 00:14:26,080 Speaker 1: the lower courts, and then the impact of the ruling 255 00:14:26,080 --> 00:14:28,960 Speaker 1: would be less sweeping. Although you know, from a lawyer's perspective, 256 00:14:29,000 --> 00:14:31,920 Speaker 1: it's it's always nice when you have clarity rather than uncertainty. 257 00:14:31,960 --> 00:14:34,320 Speaker 1: So I'm sure that lawyers would welcome that too. Thanks 258 00:14:34,360 --> 00:14:37,360 Speaker 1: so much for being on Bloomberg Law. Rick. That's Richard Garnett, 259 00:14:37,440 --> 00:14:40,560 Speaker 1: professor at Notre Dame Law School. I'm June Wilso, and 260 00:14:40,680 --> 00:14:41,600 Speaker 1: this is Bloomberg.