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Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: The line between church and state seems to be blowing

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Speaker 1: with recent Supreme Court decisions. Where will that line these

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Speaker 1: several years from now? A new book entitled The Religion

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Speaker 1: Clauses The Case for Separating Church and State explores that relationship.

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Speaker 1: Joining me is one of the authors. Erwin Chemerinsky, dean

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Speaker 1: of the Berkeley School of Law. Erwin, You've written a

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Speaker 1: whole book on the religion clauses, But can you give

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Speaker 1: us just the basics to start with. Sure, there's two

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Speaker 1: clauses in the First Amendment dealing with religion. One says

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Speaker 1: that Congress can make no law of bridging the free

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Speaker 1: exercise of religion. In screen Qui says that applies to

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Speaker 1: state and local governments as well. It's imman sub tectibility

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Speaker 1: of people to practice their religion. The other clause says

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Speaker 1: that Congress shall make no law respecting the establishment of religion.

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Speaker 1: It's usually called the established and clause. In the seven

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Speaker 1: the Supreme Court said state and local governments also must

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Speaker 1: comply with this provision. A person might hear that and say, okay,

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Speaker 1: there's a line between church and state. But what about

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Speaker 1: the fact that we pledge allegiance to one nation under God.

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Speaker 1: Our motto, our us motto is in God we trust

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Speaker 1: and it's on our money. Also we hear God save

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Speaker 1: this Honorable Court before Supreme Court sessions. So how do

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Speaker 1: those play into the two religion clauses. There's a variety

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Speaker 1: of different views on the example, as you mentioned, is

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Speaker 1: there's a variety of different views of God to everything

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Speaker 1: concerning these classes. One of you would say that this

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Speaker 1: shows that we don't separate church and state in this country,

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Speaker 1: that we accommodate religion into government and under God and

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Speaker 1: the pledge of allegiance or in God we trust to

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Speaker 1: God save this Honorable Court all reflect the larger point.

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Speaker 1: There's no such thing as a wall separating church and state.

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Speaker 1: That's what conservatives would say. There's then a position that

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Speaker 1: says that these are really what Justice O'Connor called ceremonial deism.

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Speaker 1: They're relatively minor, they're part of our culture. They don't

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Speaker 1: tell us anything larger than that. And then there's the

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Speaker 1: liberal position that says, you know, under God really shouldn't

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Speaker 1: be in the pledge of allegiance. We really shouldn't have

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Speaker 1: in God, we trust on our money or God save

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Speaker 1: this honorable Court. We should have a government that's secular,

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Speaker 1: and these are inconsistent with that, even though they're more

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Speaker 1: symbolic than anything else. When did the Supreme Court begin

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Speaker 1: to blur the line between church and state. We've seen

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Speaker 1: that a lot more recently with the Roberts Court, But

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Speaker 1: when did that begin to happen? In nine in ever

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Speaker 1: sin versus Board of Education, the Supreme Court said that

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Speaker 1: the establishment class limits with state and local governments can

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Speaker 1: do in all injustices in that case set that the

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Speaker 1: establishment clause should be understood. In the words of Thomas Jefferson,

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Speaker 1: there should be a wall that separates church and state.

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Speaker 1: And that's what the Supreme Court followed for a few decades.

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Speaker 1: It really began to change in the Burger Court, and

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Speaker 1: the Burger Court was in nineteen sixty nine to ninety six,

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Speaker 1: and essentially in the nineteen eighties there were some decisions

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Speaker 1: of the Burger Court there were much more permissive of

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Speaker 1: religious presence and government and government support for religion. Some

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Speaker 1: of the cases that stand out involving monuments religious monuments

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Speaker 1: on public lands, and you were involved in one of

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Speaker 1: the cases with the Ten Commandments. Tell us about that

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Speaker 1: case should The case was then ordin versus Pry was

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Speaker 1: decided by the Supreme Court in two thousand five. It

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Speaker 1: involves a six ft high, three ft wide Ten Commandments

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Speaker 1: monument that is directly the corner the Texas State Camp

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Speaker 1: on the Texas Supreme Court. My client, Thomas the and

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Speaker 1: Ordon brought a challenge to that and argued that there

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Speaker 1: shouldn't be a religious symbol at the seat of Texas

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Speaker 1: State government. I lost five to four in the Supreme Court.

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Speaker 1: Four justices took the approach there's nothing wrong with religious

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Speaker 1: symbols on government property. They don't coerce anyone to be

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Speaker 1: part of religion. For justices said, religious symbols just don't

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Speaker 1: belong on government property like this period. And then there

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Speaker 1: was Justice Briar who was the fifth vote, and he

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Speaker 1: joined the Conservatives, but without agreeing to the reasoning, and

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Speaker 1: said this isn't a symbolic endorsement of religion. He said,

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Speaker 1: this has been there since nine. No one complained of

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Speaker 1: the Thomas and Orton. He was paid for by Cecily

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Speaker 1: the Millen promoting his movie The Ten Commandments, not by

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Speaker 1: the State of Texas briars. There's lots of other monuments

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Speaker 1: in the Texas State Capital grounds, so this doesn't inference

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Speaker 1: the Constitution. To this day, there are still these cases

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Speaker 1: involving religious monuments on government land that come before the

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Speaker 1: Supreme Court. Is there a way of knowing how the

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Speaker 1: Supreme Court is going to rule in these cases? There

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Speaker 1: isn't a way of knowing. Until recently, the question for

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Speaker 1: the swing justices was whether a particular display should be

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Speaker 1: seen as a symbolic endorsement of religion, and people would

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Speaker 1: argue about its placement and its history, and if it

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Speaker 1: was seen as an endorsement of religion, would be love.

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Speaker 1: I'll give you an example. There were a couple of

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Speaker 1: cases the Supreme Court. One involved a Nativity scene that

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Speaker 1: was put in a large stairway display case in a courthouse.

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Speaker 1: The other involved a manora that's put in front of

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Speaker 1: a city building along with a Christmas tree and a

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Speaker 1: proclamation about tolerance in the holiday season. The Supreme Court

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Speaker 1: said that the nativity scene was unconstitutional because all by itself,

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Speaker 1: all by a saw if it was seen as a

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Speaker 1: symbolic endorsement religion. But the Court said the manua was

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Speaker 1: constitutional because it was with other symbols a Christmas tree,

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Speaker 1: a proclamation of parliament. But there's no majority opinion in

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Speaker 1: either of those cases. The court was very fragmented, but

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Speaker 1: that's what came out of it. And so until recently,

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Speaker 1: I would have said the litigation is going to be

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Speaker 1: about should the symbol be seen is an endorsement of

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Speaker 1: particular religion. Now I think, though there's five just on

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Speaker 1: the court will allow any religious symbols on government property.

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Speaker 1: I think the five conservative justices Roberts, Thomas, Leo, Gort Kavanaugh,

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Speaker 1: believe that the government violates the Establishment clause only the

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Speaker 1: coercive religious presentation. Religious symbols on government property aren't coercion.

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Speaker 1: There are lots of different areas where it seems as

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Speaker 1: if the Court is blurring the line or expanding religious liberties.

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Speaker 1: And you know, a case that stands out in this

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Speaker 1: to me is the hobby lobby case. And so tell

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Speaker 1: us about the lobby and what that stands for and

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Speaker 1: what it's led to. It's a decision in two thousand

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Speaker 1: and fourteen, and I should be clear it was not

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Speaker 1: a decision about the religion clauses of the Constitution that

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Speaker 1: we've been discussing. Instead, it was brought under a federal statute,

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Speaker 1: the Religious Freedom Restoration Act. The Religious Freedom Restoration Acause,

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Speaker 1: the federal law that says that if the federal government

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Speaker 1: significantly burdens religion, its action is allowed only that the

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Speaker 1: necessary to achieve a compelling government purpose. The Patient Protection

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Speaker 1: Affordable Care Act says that employer provided insurance should include

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Speaker 1: preventative healthcare coverage. The Obama administration said this means that

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Speaker 1: employer provided insurance should include contraceptive coverage for women. There

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Speaker 1: was an exception for religious institutions that are post conception.

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Speaker 1: So Hobby Lobby major corporation stories in twenty three states

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Speaker 1: would have been required in its health insurance policies to

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Speaker 1: include contraceptive coverage for women, but it objected is a

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Speaker 1: family owned business, and it said it violates our religious beliefs.

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Speaker 1: They have to provide contraceptive comfort. And the Supreme Court

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Speaker 1: five to four agreed with Hobby Lobby and said that

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Speaker 1: at least for family owned businesses, if they have religious

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Speaker 1: objections the contraception, they don't have to provide that to

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Speaker 1: their women employees. Did the Court expand on that this

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Speaker 1: term or was it a different issue when the Court

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Speaker 1: upheld the Trump administration rules, which gave more kinds of

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Speaker 1: employers this broad right to refuse to offer birth control

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Speaker 1: in their health plans. The case with Little Sisters Suppoor

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Speaker 1: versus Pennsylvania, as you rightly said, the Trump administration said,

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Speaker 1: any employer is an objection to contraception, whether based on

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Speaker 1: religion or philosophy, can refuse to provide such coverage for

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Speaker 1: women employees. In the issue before the Preme Court with

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Speaker 1: a narrow one, is this regulation consistent with the Affordable

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Speaker 1: Care Act? And the Supreme Court seven to two said

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Speaker 1: it was consistent with the Affordable Care Act, So it

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Speaker 1: left open the question of did violate the Administrative Procedures Act?

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Speaker 1: But basically the Court said the Trump administration could do it.

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Speaker 1: So you have this idea of the conservative justices versus

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Speaker 1: the liberal justices on religion. But two Justices Elena Kagan

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Speaker 1: and Stephen Bryer side with the conservatives a lot of

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Speaker 1: the time. Why is it that they are, you know,

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Speaker 1: liberal in other respects, But with this they often sawed

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Speaker 1: with the Conservatives. Sometimes they do and sometimes they don't.

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Speaker 1: So for example, a few years ago, there was a

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Speaker 1: case Town of Greece versus Galloway that involved the town

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Speaker 1: and upstate New York that for about ten years began

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Speaker 1: its town board meeting every month with a very explicit

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Speaker 1: Christian prayer filled by a Christian clergy. Member of court

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Speaker 1: five to four said it didn't violate the stablished clause,

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Speaker 1: but Justice Kagan wrote a scathing descent, joined by Ginsburg

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Speaker 1: Briar in Soda Mayor. There was the case this term

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Speaker 1: Espinosa versus Montana Department of Revenues involved the Montana law

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Speaker 1: that allowed parents to get a tax credit their money

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Speaker 1: to a private school tuition organization. The Montana Supreme Court

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Speaker 1: said it violated the Montana Constitution because the Montana Constitution

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Speaker 1: doesn't allow direct or indirect aid to religion. The Supreme

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Speaker 1: Court five to four reversed the Montana Supreme Court. The

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Speaker 1: court five to four said the government can't deny benefits

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Speaker 1: to religion institutions that gives the secular ones. But Friar

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Speaker 1: and Kagan joined with Ginsburg and Soda mirror is the descent.

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Speaker 1: But sometimes you're right there with the conservatives. A year ago,

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Speaker 1: there was a case American Legion versu American Human Association

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Speaker 1: that avows the forty five ft cross on public property

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Speaker 1: at a busy intersection in Prince Gewige, County, Maryland, and

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Speaker 1: the Supreme Court seven to two that it didn't violate

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Speaker 1: the establishment clause. Kagan and Briar were the Conservatives or

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Speaker 1: this term, there was a case Our Lady of Guadalupe

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Speaker 1: School versus Marcy Burreuth. It involved whether a Catholic school

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Speaker 1: the fire lay teachers based on disability based on age.

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Speaker 1: Seven to two of the Supreme Court said that religious

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Speaker 1: schools can do that. Kagan and brian joined the Conservatives.

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Speaker 1: Once more, Ginsburg and cent amor with a dissent. How

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Speaker 1: far has it gotten from the idea that there shouldn't

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Speaker 1: be government aid to religious institutions? I mean, how far

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Speaker 1: have they blurred the line? Well, not only have they

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Speaker 1: blurred the line, they're now saying the government is required

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Speaker 1: to give aid to religious schools when it gives that

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Speaker 1: aid to secular schools. For decades, the litigation was about

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Speaker 1: is your question implies, when may the government give aid

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Speaker 1: to religious schools if it choose to do so without

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Speaker 1: violating the establishment clause? Based on the Espinosa case I

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Speaker 1: mentioned in another since three years ago. I think the

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Speaker 1: Supreme Court is saying, whenever the government gives aid to

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Speaker 1: private secular schools, it must give that aid to religious

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Speaker 1: schools unless doing so would violate the establishment clause. But

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Speaker 1: very little violated the establishment clause for these justices. A

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Speaker 1: case that got a lot of attention years ago. In fact,

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Speaker 1: most people knew the name of it was Masterpiece Cake Shop.

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Speaker 1: Sure that was years ago. Do we now know, according

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Speaker 1: to the Supreme Court, whether a business owner can refuse

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Speaker 1: to serve clients because of religious objections to same sex marriage.

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Speaker 1: We don't know the Answerpiece Cake Shop was a couple

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Speaker 1: of years ago, and it involved a gay couple that

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Speaker 1: asked a bakery to design and bake a cake to

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Speaker 1: celebrate their wedding, and the owner of the baker, Masterpiece

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Speaker 1: cake Shop, refused. They brought an action to the Colorado

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Speaker 1: Civil Rights Commission, which ruled against the bakery. The Colorado

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Speaker 1: Court of Appeals as firmed, and everyone thought the Supreme

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Speaker 1: Corps was going to deal with this underlying issue, how

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Speaker 1: do we balance the freedom to practice one's religion against

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Speaker 1: the desire for equality and stop discrimination against gays and lesbians.

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Speaker 1: The Court didn't resolve that issue. There's a case before

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Speaker 1: the Supreme Court coming up Fulton versus City of Philadelphia

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Speaker 1: and involves with the Philadelphia can refuse to contract with

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Speaker 1: the Catholic Social Services to place foster children whose Catholic

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Speaker 1: Social Service won't do so. With day and lesbian foster appearance,

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Speaker 1: that's the same underlying issue. And there's lots of lower

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Speaker 1: cure cases that involved things like can a photographer or

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Speaker 1: videographer refused to take pictures at the same sex wedding?

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Speaker 1: Can flores refused to make floral range for same sex wedding?

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Speaker 1: Can a stationary store refused and grave invitations for same

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Speaker 1: sex wedding? And they're all about the same issue. How

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Speaker 1: do we balance the freedom that's claimed to practice one

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Speaker 1: religion versus the quality concern but stopping discrimination. Instead of

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Speaker 1: talking about a line between church and state, let's talk

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Speaker 1: about a wall between church and state. So, if you

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Speaker 1: look at the jurisprudence today, is there a wall? Has

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Speaker 1: the wall been knocked down? I think the conservatives and

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Speaker 1: the Court don't believe that there should be a wall

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Speaker 1: that separates church and state. So I guess if I

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Speaker 1: had to put it into the metaphorre, I think they're

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Speaker 1: obliterating the wall that separates church and state. Beginning with

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Speaker 1: the Conservatives in the nineteen eighties, so I alluded to,

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Speaker 1: they took the view that the government violates the Establishment

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Speaker 1: Clause only if the courses religious participation. Nothing else violates

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Speaker 1: the Establishment Clause. And so from their perspective, religious symbols

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Speaker 1: on government property don't violate the Establishment Clause. They don't

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Speaker 1: coerce religious participation. Government aid to parochial schools so long

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Speaker 1: as it doesn't course religious is fine, and um religious

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Speaker 1: presence and government activities like prayer of town boy meetings

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Speaker 1: doesn't coerce religious deistation. Now two Justices Thomas and Gorsets,

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Speaker 1: have indicated they go even further. Justice Thomas has repeatedly

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Speaker 1: said that he doesn't believe the Establishment Clause applies to

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Speaker 1: state local governments at all. Justice Thomas says the Establishment

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Speaker 1: Clause was just meant to keep Congress from creating a

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Speaker 1: national church derival the state churches that exist at the time. So,

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Speaker 1: for Thomas, and now Gorsets has joined him, there could

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Speaker 1: be a state that declares an official religion. A state

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Speaker 1: could require prayer in public school olls. State Krokho or

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Speaker 1: anything with the garden religion, and it wouldn't violate the

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Speaker 1: Constitution from their perspective because it doesn't apply to state

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Speaker 1: and local governments at all. And tell us about the

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Speaker 1: theory that you've expressed in your book. Our view is

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Speaker 1: that there should be a law that separates church and state.

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Speaker 1: The metaphor of a law separating church and state wasn't

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Speaker 1: invented by liberal law professors. Was Thomas Jefferson who said

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Speaker 1: so long ago, and we believe that that government should

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Speaker 1: be secular, that the place for religion should be in

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Speaker 1: people's lives to be that they wanted to be there.

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Speaker 1: Thanks Irwin. That's Erwin Chimerinsky, dean of the Berkeley Law School.

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Speaker 1: His book is The Religion Clause is the Case for

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Speaker 1: Separating Church and State. I'm June Grosso. Thanks so much

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Speaker 1: for listening, and please tune into The Bloomberg Law Show

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Speaker 1: every week night at ten pm Eastern on Bloomberg Radio.

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Speaker 1: Intendent of