WEBVTT - Separating Church and State 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:06.160 --> 0:00:08.959 The line between church and state seems to be blowing 0:00:09.000 --> 0:00:12.520 with recent Supreme Court decisions. Where will that line these 0:00:12.600 --> 0:00:16.239 several years from now? A new book entitled The Religion 0:00:16.320 --> 0:00:21.079 Clauses The Case for Separating Church and State explores that relationship. 0:00:21.520 --> 0:00:24.520 Joining me is one of the authors. Erwin Chemerinsky, dean 0:00:24.560 --> 0:00:27.720 of the Berkeley School of Law. Erwin, You've written a 0:00:27.760 --> 0:00:29.920 whole book on the religion clauses, But can you give 0:00:30.000 --> 0:00:34.160 us just the basics to start with. Sure, there's two 0:00:34.200 --> 0:00:37.760 clauses in the First Amendment dealing with religion. One says 0:00:37.800 --> 0:00:41.120 that Congress can make no law of bridging the free 0:00:41.159 --> 0:00:46.120 exercise of religion. In screen Qui says that applies to 0:00:46.200 --> 0:00:49.600 state and local governments as well. It's imman sub tectibility 0:00:49.640 --> 0:00:53.240 of people to practice their religion. The other clause says 0:00:53.320 --> 0:00:57.880 that Congress shall make no law respecting the establishment of religion. 0:00:58.440 --> 0:01:02.040 It's usually called the established and clause. In the seven 0:01:02.120 --> 0:01:05.560 the Supreme Court said state and local governments also must 0:01:05.600 --> 0:01:10.280 comply with this provision. A person might hear that and say, okay, 0:01:10.360 --> 0:01:13.640 there's a line between church and state. But what about 0:01:14.040 --> 0:01:17.399 the fact that we pledge allegiance to one nation under God. 0:01:17.560 --> 0:01:20.240 Our motto, our us motto is in God we trust 0:01:20.520 --> 0:01:23.360 and it's on our money. Also we hear God save 0:01:23.520 --> 0:01:27.160 this Honorable Court before Supreme Court sessions. So how do 0:01:27.319 --> 0:01:34.080 those play into the two religion clauses. There's a variety 0:01:34.160 --> 0:01:36.800 of different views on the example, as you mentioned, is 0:01:36.840 --> 0:01:39.200 there's a variety of different views of God to everything 0:01:39.319 --> 0:01:43.040 concerning these classes. One of you would say that this 0:01:43.240 --> 0:01:46.520 shows that we don't separate church and state in this country, 0:01:46.920 --> 0:01:50.560 that we accommodate religion into government and under God and 0:01:50.640 --> 0:01:52.840 the pledge of allegiance or in God we trust to 0:01:53.000 --> 0:01:56.720 God save this Honorable Court all reflect the larger point. 0:01:57.000 --> 0:01:59.440 There's no such thing as a wall separating church and state. 0:02:00.120 --> 0:02:03.760 That's what conservatives would say. There's then a position that 0:02:03.880 --> 0:02:09.639 says that these are really what Justice O'Connor called ceremonial deism. 0:02:10.520 --> 0:02:14.720 They're relatively minor, they're part of our culture. They don't 0:02:14.760 --> 0:02:18.359 tell us anything larger than that. And then there's the 0:02:18.440 --> 0:02:22.000 liberal position that says, you know, under God really shouldn't 0:02:22.040 --> 0:02:24.959 be in the pledge of allegiance. We really shouldn't have 0:02:25.120 --> 0:02:27.519 in God, we trust on our money or God save 0:02:27.639 --> 0:02:32.080 this honorable Court. We should have a government that's secular, 0:02:32.360 --> 0:02:35.040 and these are inconsistent with that, even though they're more 0:02:35.080 --> 0:02:39.560 symbolic than anything else. When did the Supreme Court begin 0:02:39.680 --> 0:02:42.799 to blur the line between church and state. We've seen 0:02:42.880 --> 0:02:46.200 that a lot more recently with the Roberts Court, But 0:02:46.440 --> 0:02:51.400 when did that begin to happen? In nine in ever 0:02:51.560 --> 0:02:55.079 sin versus Board of Education, the Supreme Court said that 0:02:55.200 --> 0:02:58.080 the establishment class limits with state and local governments can 0:02:58.160 --> 0:03:02.440 do in all injustices in that case set that the 0:03:02.639 --> 0:03:06.720 establishment clause should be understood. In the words of Thomas Jefferson, 0:03:07.080 --> 0:03:09.760 there should be a wall that separates church and state. 0:03:10.440 --> 0:03:13.520 And that's what the Supreme Court followed for a few decades. 0:03:13.919 --> 0:03:16.880 It really began to change in the Burger Court, and 0:03:16.960 --> 0:03:20.840 the Burger Court was in nineteen sixty nine to ninety six, 0:03:21.400 --> 0:03:23.840 and essentially in the nineteen eighties there were some decisions 0:03:23.840 --> 0:03:26.959 of the Burger Court there were much more permissive of 0:03:27.120 --> 0:03:30.919 religious presence and government and government support for religion. Some 0:03:31.120 --> 0:03:35.400 of the cases that stand out involving monuments religious monuments 0:03:35.520 --> 0:03:39.720 on public lands, and you were involved in one of 0:03:39.760 --> 0:03:43.240 the cases with the Ten Commandments. Tell us about that 0:03:43.400 --> 0:03:47.520 case should The case was then ordin versus Pry was 0:03:47.640 --> 0:03:51.400 decided by the Supreme Court in two thousand five. It 0:03:51.520 --> 0:03:56.360 involves a six ft high, three ft wide Ten Commandments 0:03:56.400 --> 0:04:00.200 monument that is directly the corner the Texas State Camp 0:04:00.400 --> 0:04:04.240 on the Texas Supreme Court. My client, Thomas the and 0:04:04.440 --> 0:04:08.080 Ordon brought a challenge to that and argued that there 0:04:08.120 --> 0:04:12.280 shouldn't be a religious symbol at the seat of Texas 0:04:12.320 --> 0:04:16.680 State government. I lost five to four in the Supreme Court. 0:04:16.920 --> 0:04:20.400 Four justices took the approach there's nothing wrong with religious 0:04:20.440 --> 0:04:23.440 symbols on government property. They don't coerce anyone to be 0:04:23.600 --> 0:04:27.240 part of religion. For justices said, religious symbols just don't 0:04:27.320 --> 0:04:31.039 belong on government property like this period. And then there 0:04:31.160 --> 0:04:33.880 was Justice Briar who was the fifth vote, and he 0:04:34.080 --> 0:04:36.920 joined the Conservatives, but without agreeing to the reasoning, and 0:04:37.000 --> 0:04:41.000 said this isn't a symbolic endorsement of religion. He said, 0:04:41.080 --> 0:04:44.320 this has been there since nine. No one complained of 0:04:44.440 --> 0:04:47.920 the Thomas and Orton. He was paid for by Cecily 0:04:48.000 --> 0:04:50.840 the Millen promoting his movie The Ten Commandments, not by 0:04:50.880 --> 0:04:53.680 the State of Texas briars. There's lots of other monuments 0:04:53.720 --> 0:04:56.560 in the Texas State Capital grounds, so this doesn't inference 0:04:56.640 --> 0:05:01.400 the Constitution. To this day, there are still these cases 0:05:01.640 --> 0:05:05.760 involving religious monuments on government land that come before the 0:05:05.839 --> 0:05:08.640 Supreme Court. Is there a way of knowing how the 0:05:08.720 --> 0:05:12.560 Supreme Court is going to rule in these cases? There 0:05:12.680 --> 0:05:16.800 isn't a way of knowing. Until recently, the question for 0:05:17.120 --> 0:05:22.120 the swing justices was whether a particular display should be 0:05:22.200 --> 0:05:25.880 seen as a symbolic endorsement of religion, and people would 0:05:26.000 --> 0:05:29.480 argue about its placement and its history, and if it 0:05:29.560 --> 0:05:31.680 was seen as an endorsement of religion, would be love. 0:05:31.720 --> 0:05:33.880 I'll give you an example. There were a couple of 0:05:33.960 --> 0:05:39.800 cases the Supreme Court. One involved a Nativity scene that 0:05:39.960 --> 0:05:43.400 was put in a large stairway display case in a courthouse. 0:05:43.640 --> 0:05:46.440 The other involved a manora that's put in front of 0:05:46.440 --> 0:05:49.880 a city building along with a Christmas tree and a 0:05:50.000 --> 0:05:53.400 proclamation about tolerance in the holiday season. The Supreme Court 0:05:53.520 --> 0:05:58.960 said that the nativity scene was unconstitutional because all by itself, 0:05:59.480 --> 0:06:00.800 all by a saw if it was seen as a 0:06:00.839 --> 0:06:04.240 symbolic endorsement religion. But the Court said the manua was 0:06:04.360 --> 0:06:08.720 constitutional because it was with other symbols a Christmas tree, 0:06:09.080 --> 0:06:12.680 a proclamation of parliament. But there's no majority opinion in 0:06:12.839 --> 0:06:16.480 either of those cases. The court was very fragmented, but 0:06:16.640 --> 0:06:19.200 that's what came out of it. And so until recently, 0:06:19.200 --> 0:06:21.080 I would have said the litigation is going to be 0:06:21.120 --> 0:06:24.280 about should the symbol be seen is an endorsement of 0:06:24.360 --> 0:06:27.200 particular religion. Now I think, though there's five just on 0:06:27.279 --> 0:06:30.080 the court will allow any religious symbols on government property. 0:06:30.560 --> 0:06:35.239 I think the five conservative justices Roberts, Thomas, Leo, Gort Kavanaugh, 0:06:35.640 --> 0:06:39.040 believe that the government violates the Establishment clause only the 0:06:39.160 --> 0:06:43.840 coercive religious presentation. Religious symbols on government property aren't coercion. 0:06:44.720 --> 0:06:47.560 There are lots of different areas where it seems as 0:06:47.640 --> 0:06:52.400 if the Court is blurring the line or expanding religious liberties. 0:06:52.839 --> 0:06:55.880 And you know, a case that stands out in this 0:06:56.120 --> 0:06:59.280 to me is the hobby lobby case. And so tell 0:06:59.360 --> 0:07:02.520 us about the lobby and what that stands for and 0:07:02.600 --> 0:07:05.520 what it's led to. It's a decision in two thousand 0:07:05.520 --> 0:07:08.080 and fourteen, and I should be clear it was not 0:07:08.520 --> 0:07:11.920 a decision about the religion clauses of the Constitution that 0:07:12.000 --> 0:07:16.080 we've been discussing. Instead, it was brought under a federal statute, 0:07:16.720 --> 0:07:21.160 the Religious Freedom Restoration Act. The Religious Freedom Restoration Acause, 0:07:21.200 --> 0:07:23.880 the federal law that says that if the federal government 0:07:23.960 --> 0:07:28.960 significantly burdens religion, its action is allowed only that the 0:07:29.080 --> 0:07:34.280 necessary to achieve a compelling government purpose. The Patient Protection 0:07:34.360 --> 0:07:40.440 Affordable Care Act says that employer provided insurance should include 0:07:40.720 --> 0:07:46.240 preventative healthcare coverage. The Obama administration said this means that 0:07:46.400 --> 0:07:51.520 employer provided insurance should include contraceptive coverage for women. There 0:07:51.600 --> 0:07:54.880 was an exception for religious institutions that are post conception. 0:07:55.880 --> 0:08:01.040 So Hobby Lobby major corporation stories in twenty three states 0:08:01.720 --> 0:08:05.080 would have been required in its health insurance policies to 0:08:05.240 --> 0:08:09.720 include contraceptive coverage for women, but it objected is a 0:08:09.840 --> 0:08:13.920 family owned business, and it said it violates our religious beliefs. 0:08:13.960 --> 0:08:17.520 They have to provide contraceptive comfort. And the Supreme Court 0:08:17.640 --> 0:08:20.240 five to four agreed with Hobby Lobby and said that 0:08:20.280 --> 0:08:23.160 at least for family owned businesses, if they have religious 0:08:23.200 --> 0:08:25.840 objections the contraception, they don't have to provide that to 0:08:25.880 --> 0:08:29.760 their women employees. Did the Court expand on that this 0:08:29.960 --> 0:08:33.080 term or was it a different issue when the Court 0:08:33.160 --> 0:08:36.240 upheld the Trump administration rules, which gave more kinds of 0:08:36.320 --> 0:08:40.160 employers this broad right to refuse to offer birth control 0:08:40.679 --> 0:08:44.320 in their health plans. The case with Little Sisters Suppoor 0:08:44.520 --> 0:08:48.760 versus Pennsylvania, as you rightly said, the Trump administration said, 0:08:49.280 --> 0:08:53.160 any employer is an objection to contraception, whether based on 0:08:53.240 --> 0:08:57.439 religion or philosophy, can refuse to provide such coverage for 0:08:57.520 --> 0:09:00.640 women employees. In the issue before the Preme Court with 0:09:00.720 --> 0:09:06.600 a narrow one, is this regulation consistent with the Affordable 0:09:06.720 --> 0:09:09.880 Care Act? And the Supreme Court seven to two said 0:09:10.240 --> 0:09:13.240 it was consistent with the Affordable Care Act, So it 0:09:13.360 --> 0:09:18.520 left open the question of did violate the Administrative Procedures Act? 0:09:19.080 --> 0:09:21.480 But basically the Court said the Trump administration could do it. 0:09:22.400 --> 0:09:25.320 So you have this idea of the conservative justices versus 0:09:25.400 --> 0:09:30.120 the liberal justices on religion. But two Justices Elena Kagan 0:09:30.280 --> 0:09:34.760 and Stephen Bryer side with the conservatives a lot of 0:09:34.840 --> 0:09:37.280 the time. Why is it that they are, you know, 0:09:37.400 --> 0:09:40.839 liberal in other respects, But with this they often sawed 0:09:40.920 --> 0:09:45.160 with the Conservatives. Sometimes they do and sometimes they don't. 0:09:45.920 --> 0:09:48.360 So for example, a few years ago, there was a 0:09:48.440 --> 0:09:52.199 case Town of Greece versus Galloway that involved the town 0:09:52.280 --> 0:09:55.880 and upstate New York that for about ten years began 0:09:56.000 --> 0:09:59.920 its town board meeting every month with a very explicit 0:10:00.160 --> 0:10:03.560 Christian prayer filled by a Christian clergy. Member of court 0:10:03.679 --> 0:10:06.240 five to four said it didn't violate the stablished clause, 0:10:06.480 --> 0:10:11.600 but Justice Kagan wrote a scathing descent, joined by Ginsburg 0:10:11.720 --> 0:10:15.520 Briar in Soda Mayor. There was the case this term 0:10:15.960 --> 0:10:20.679 Espinosa versus Montana Department of Revenues involved the Montana law 0:10:21.280 --> 0:10:24.480 that allowed parents to get a tax credit their money 0:10:24.520 --> 0:10:28.720 to a private school tuition organization. The Montana Supreme Court 0:10:28.800 --> 0:10:33.520 said it violated the Montana Constitution because the Montana Constitution 0:10:33.600 --> 0:10:38.280 doesn't allow direct or indirect aid to religion. The Supreme 0:10:38.320 --> 0:10:42.240 Court five to four reversed the Montana Supreme Court. The 0:10:42.320 --> 0:10:45.560 court five to four said the government can't deny benefits 0:10:45.559 --> 0:10:49.160 to religion institutions that gives the secular ones. But Friar 0:10:49.360 --> 0:10:53.640 and Kagan joined with Ginsburg and Soda mirror is the descent. 0:10:54.320 --> 0:10:58.040 But sometimes you're right there with the conservatives. A year ago, 0:10:58.160 --> 0:11:02.120 there was a case American Legion versu American Human Association 0:11:02.679 --> 0:11:06.720 that avows the forty five ft cross on public property 0:11:07.120 --> 0:11:10.240 at a busy intersection in Prince Gewige, County, Maryland, and 0:11:10.320 --> 0:11:13.240 the Supreme Court seven to two that it didn't violate 0:11:13.280 --> 0:11:18.640 the establishment clause. Kagan and Briar were the Conservatives or 0:11:18.960 --> 0:11:21.840 this term, there was a case Our Lady of Guadalupe 0:11:22.000 --> 0:11:27.240 School versus Marcy Burreuth. It involved whether a Catholic school 0:11:27.920 --> 0:11:32.760 the fire lay teachers based on disability based on age. 0:11:33.480 --> 0:11:36.200 Seven to two of the Supreme Court said that religious 0:11:36.200 --> 0:11:39.480 schools can do that. Kagan and brian joined the Conservatives. 0:11:39.720 --> 0:11:42.800 Once more, Ginsburg and cent amor with a dissent. How 0:11:42.880 --> 0:11:45.120 far has it gotten from the idea that there shouldn't 0:11:45.160 --> 0:11:50.000 be government aid to religious institutions? I mean, how far 0:11:50.080 --> 0:11:54.160 have they blurred the line? Well, not only have they 0:11:54.280 --> 0:11:59.160 blurred the line, they're now saying the government is required 0:11:59.480 --> 0:12:02.719 to give aid to religious schools when it gives that 0:12:02.800 --> 0:12:07.320 aid to secular schools. For decades, the litigation was about 0:12:08.800 --> 0:12:13.160 is your question implies, when may the government give aid 0:12:13.320 --> 0:12:16.320 to religious schools if it choose to do so without 0:12:16.360 --> 0:12:20.040 violating the establishment clause? Based on the Espinosa case I 0:12:20.160 --> 0:12:23.000 mentioned in another since three years ago. I think the 0:12:23.040 --> 0:12:27.000 Supreme Court is saying, whenever the government gives aid to 0:12:27.280 --> 0:12:30.880 private secular schools, it must give that aid to religious 0:12:30.880 --> 0:12:34.599 schools unless doing so would violate the establishment clause. But 0:12:34.800 --> 0:12:38.040 very little violated the establishment clause for these justices. A 0:12:38.240 --> 0:12:42.040 case that got a lot of attention years ago. In fact, 0:12:42.280 --> 0:12:45.199 most people knew the name of it was Masterpiece Cake Shop. 0:12:45.520 --> 0:12:49.120 Sure that was years ago. Do we now know, according 0:12:49.160 --> 0:12:52.040 to the Supreme Court, whether a business owner can refuse 0:12:52.160 --> 0:12:56.720 to serve clients because of religious objections to same sex marriage. 0:12:57.640 --> 0:13:00.680 We don't know the Answerpiece Cake Shop was a couple 0:13:00.720 --> 0:13:04.280 of years ago, and it involved a gay couple that 0:13:04.480 --> 0:13:07.079 asked a bakery to design and bake a cake to 0:13:07.200 --> 0:13:10.360 celebrate their wedding, and the owner of the baker, Masterpiece 0:13:10.440 --> 0:13:14.040 cake Shop, refused. They brought an action to the Colorado 0:13:14.080 --> 0:13:17.920 Civil Rights Commission, which ruled against the bakery. The Colorado 0:13:17.960 --> 0:13:20.760 Court of Appeals as firmed, and everyone thought the Supreme 0:13:20.800 --> 0:13:23.679 Corps was going to deal with this underlying issue, how 0:13:23.720 --> 0:13:28.360 do we balance the freedom to practice one's religion against 0:13:28.400 --> 0:13:31.720 the desire for equality and stop discrimination against gays and lesbians. 0:13:32.120 --> 0:13:36.000 The Court didn't resolve that issue. There's a case before 0:13:36.080 --> 0:13:40.559 the Supreme Court coming up Fulton versus City of Philadelphia 0:13:41.160 --> 0:13:45.480 and involves with the Philadelphia can refuse to contract with 0:13:45.720 --> 0:13:49.959 the Catholic Social Services to place foster children whose Catholic 0:13:50.000 --> 0:13:53.960 Social Service won't do so. With day and lesbian foster appearance, 0:13:54.640 --> 0:13:58.560 that's the same underlying issue. And there's lots of lower 0:13:58.640 --> 0:14:03.240 cure cases that involved things like can a photographer or 0:14:03.400 --> 0:14:07.000 videographer refused to take pictures at the same sex wedding? 0:14:07.160 --> 0:14:10.360 Can flores refused to make floral range for same sex wedding? 0:14:10.640 --> 0:14:13.640 Can a stationary store refused and grave invitations for same 0:14:13.679 --> 0:14:16.760 sex wedding? And they're all about the same issue. How 0:14:16.880 --> 0:14:20.520 do we balance the freedom that's claimed to practice one 0:14:20.600 --> 0:14:26.560 religion versus the quality concern but stopping discrimination. Instead of 0:14:27.120 --> 0:14:30.200 talking about a line between church and state, let's talk 0:14:30.240 --> 0:14:32.480 about a wall between church and state. So, if you 0:14:32.560 --> 0:14:37.640 look at the jurisprudence today, is there a wall? Has 0:14:37.680 --> 0:14:40.920 the wall been knocked down? I think the conservatives and 0:14:41.000 --> 0:14:43.720 the Court don't believe that there should be a wall 0:14:43.800 --> 0:14:46.600 that separates church and state. So I guess if I 0:14:46.680 --> 0:14:48.560 had to put it into the metaphorre, I think they're 0:14:48.600 --> 0:14:52.440 obliterating the wall that separates church and state. Beginning with 0:14:52.600 --> 0:14:55.200 the Conservatives in the nineteen eighties, so I alluded to, 0:14:55.840 --> 0:14:59.920 they took the view that the government violates the Establishment 0:15:00.000 --> 0:15:06.280 Clause only if the courses religious participation. Nothing else violates 0:15:06.360 --> 0:15:11.040 the Establishment Clause. And so from their perspective, religious symbols 0:15:11.080 --> 0:15:15.000 on government property don't violate the Establishment Clause. They don't 0:15:15.000 --> 0:15:20.120 coerce religious participation. Government aid to parochial schools so long 0:15:20.160 --> 0:15:25.200 as it doesn't course religious is fine, and um religious 0:15:25.240 --> 0:15:28.000 presence and government activities like prayer of town boy meetings 0:15:28.200 --> 0:15:33.200 doesn't coerce religious deistation. Now two Justices Thomas and Gorsets, 0:15:33.240 --> 0:15:36.880 have indicated they go even further. Justice Thomas has repeatedly 0:15:36.880 --> 0:15:39.720 said that he doesn't believe the Establishment Clause applies to 0:15:39.800 --> 0:15:43.920 state local governments at all. Justice Thomas says the Establishment 0:15:44.000 --> 0:15:47.520 Clause was just meant to keep Congress from creating a 0:15:47.680 --> 0:15:52.040 national church derival the state churches that exist at the time. So, 0:15:52.200 --> 0:15:54.920 for Thomas, and now Gorsets has joined him, there could 0:15:54.960 --> 0:15:58.000 be a state that declares an official religion. A state 0:15:58.080 --> 0:16:01.480 could require prayer in public school olls. State Krokho or 0:16:01.640 --> 0:16:04.440 anything with the garden religion, and it wouldn't violate the 0:16:04.520 --> 0:16:08.520 Constitution from their perspective because it doesn't apply to state 0:16:08.560 --> 0:16:10.720 and local governments at all. And tell us about the 0:16:10.840 --> 0:16:13.840 theory that you've expressed in your book. Our view is 0:16:14.040 --> 0:16:17.200 that there should be a law that separates church and state. 0:16:17.640 --> 0:16:20.400 The metaphor of a law separating church and state wasn't 0:16:20.520 --> 0:16:24.520 invented by liberal law professors. Was Thomas Jefferson who said 0:16:24.600 --> 0:16:28.480 so long ago, and we believe that that government should 0:16:28.520 --> 0:16:31.920 be secular, that the place for religion should be in 0:16:32.040 --> 0:16:34.240 people's lives to be that they wanted to be there. 0:16:34.480 --> 0:16:38.640 Thanks Irwin. That's Erwin Chimerinsky, dean of the Berkeley Law School. 0:16:39.320 --> 0:16:41.880 His book is The Religion Clause is the Case for 0:16:42.000 --> 0:16:45.760 Separating Church and State. I'm June Grosso. Thanks so much 0:16:45.800 --> 0:16:48.440 for listening, and please tune into The Bloomberg Law Show 0:16:48.520 --> 0:16:51.400 every week night at ten pm Eastern on Bloomberg Radio. 0:17:00.920 --> 0:17:02.480 Intendent of