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Alison, Liz, and Rebecca are joined by Professor Marci Hamilton, legal icon and leading expert on the Religious Freedom Restoration Act (RFRA) and extreme religious liberty. Professor Hamilton explains the origin story of RFRA, how it has led us to the emerging theocracy we face, and what Americans can do to reclaim true religious liberty before it’s too late.
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Background
Cases
Rebecca Markert:
Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I’m Rebecca Markert with the Freedom From Religion Foundation.
Alison Gill:
And I’m Alison Gill with American Atheists.
Liz Cavell:
And I’m Liz Cavell, also with the Freedom From Religion Foundation.
Rebecca Markert:
In today’s episode, we are going to discuss the Religious Freedom Restoration Act, otherwise known as RFRA. And to help demystify RFRA, we are excited to welcome an icon, another secular woman attorney professor Marci Hamilton to the show. For those of you who are unfamiliar with her, I’m going to give you a brief bio. She’s had quite an incredible career and I’m going to be skipping a lot of it. Professor Hamilton is a professor of practice in the Department of Political Science and the Fox Family Pavilion non-resident senior fellow in the program for research on religion at the University of Pennsylvania. She’s a leading and influential critic of extreme religious liberty and the author of God Versus the Gavel: the Perils of Extreme Religious Liberty, which was nominated for a Pulitzer Prize. Marci successfully challenged the constitutionality of RFRA at the Supreme Court in city of Boerne versus Flores in 1997 and defeated the RFRA claim brought by the Archdiocese of Milwaukee against hundreds of child sex abuse survivors in Committee of Unsecured Creditors versus Listecki in the Seventh Circuit in 2015, Hamilton clerked for the United States Supreme Court Justice, Sandra Day O’Connor and Judge Edward Becker of the United States Court of Appeals for the Third Circuit.
Also of interest to our listeners, she is the founder and CEO of CHILD USA, a nonprofit think tank that pairs cutting edge legal analysis with original social science research to improve laws and policies related to child abuse and neglect. Professor Hamilton is the leading expert on clergy sex abuse and sex abuse statutes of limitation. She is the author of Justice Denied: What America Must Do to Protect Its Children, which advocates for the elimination of child sex abuse statutes of limitations. We will put a link to her think tank CHILD USA in the show notes. Welcome Professor Hamilton. My first question for you, Marci is you were one of the first clerks for Sandra Day O’Connor, is that correct?
Prof. Marci Hamilton:
In the earlier years, yes. She joined in 83 and I clerked in 90.
Rebecca Markert:
So you clerked for the very first woman Justice of the US Supreme Court. One of the reasons we started this podcast was to also raise the voices of women secular attorneys and just women who work in constitutional law. So I think that we would all be really interested in hearing about what that was like.
Prof. Marci Hamilton:
So Justice O’Connor became kind of my mother in the law person in my life, and she was this extraordinary, and I shouldn’t say past tense, she’s still alive, but she’s not well. But she was this extraordinary mix of just down-home common sense with brilliance and I’ve never met anybody who knew how to work professionally and talk to anybody in the world more professionally. So it was a gift. There was never a sense that I was clerking for their first female justice. I was clerking for the original Sandra Day O’Connor and she never wanted it put in those terms. Although what was truly amazing about her is that because she was the first female justice, she received invitations from all over the world to address every possible event and she took a lot of them. I mean, she really was an ambassador for the court even more so than the men on the court for a number of years, and it was all about public service, so really was lucky to clerk for her.
Rebecca Markert:
Wow. Our topic today is the Religious Freedom Restoration Act, and we have talked about it previously on this show. We’ve given our listeners a brief synopsis of what the law is, but we’d love to hear it from you. Can you briefly tell us what RFRA is and why it is unconstitutional?
Prof. Marci Hamilton:
So RFRA is the Religious Freedom Restoration Act. It was passed in 1993, the first time, in response to Employment Division versus Smith, which was a case about whether or not drug counselors could be fired and then not be paid unemployment compensation because they use an illegal drug. It so happened they were using an illegal drug during a religious service. So they argued that they had a right to use that drug regardless of the law. The case went to the Supreme Court and a majority of the Supreme Court said, no, you don’t. Just because you’re religious, you don’t get to get around all the laws that apply to everybody else. This was directly in the face of the conservative evangelical Catholic movement that started in the 1980s to essentially set up a world where religious believers have more rights than everybody else. So they were very upset when the court came down with this decision, which by the way was exactly what the court had always been saying.
There was no news in this decision, but they made it a cause celeb and they persuaded Congress who had no clue what they were doing, that the Religious Freedom Restoration Act was a great thing. They said the following: if you are religious, you can avoid the law unless the government can prove that it passed the law for a compelling interest. And this is the part that’s most troubling. And the government needs to be able to prove that this law is the least restrictive means for your religious beliefs. So the way RFRA operates is through the imagination. So let’s say you have a law that says that you’re not allowed to build a house of worship in this part of the city because it is residential. The RFRA response to that is that, well, nothing under zoning law is compelling. And secondly, what is the least restrictive means in order to accommodate these religious believers in this circumstance?
And courts have answered that by saying, well, the least restrictive means would mean that the town will buy the building you already bought and we’ll make sure that you can locate in a building that you would really like, or it means that, oh yes, you are in a residential district, but you’re going to get the zoning that nobody else can get because you’re religious. So it’s created this unfortunate world where religious believers are being told by the law that their claims are preeminent above all other claims and that the law rarely should apply to them.
Alison Gill:
RFRA has had a substantial impact on litigation regarding church state issues. In many ways, I think allowing the development of doctrine to help get around Smith and advanced exercise jurisprudence. Can you talk about RFRA as a tool for litigation by Christian nationalists? I think that’s an important thing people should understand.
Prof. Marci Hamilton:
Well, RFRA is the sword of any religious group, especially Christian nationalists who want to get around the laws that apply to everybody else. And the unfortunate, and one of the most dangerous aspects of RFRA is that even the courts get confused because RFRA is just a statute, it could be overruled tomorrow and that would be perfectly constitutional. It’s just a statute that gives every religious believer more rights than the First Amendment does. And so by creating this religious liberty right, the courts and the public get confused and they think RFRA is the Constitution, or RFRA is required by the Constitution. They talk like that all the time. There was a decision that just came down recently and then the court only ruled on RFRA and kept talking about the claimant’s constitutional rights. So there has been an attempt, an effort to make RFRA sound like and operate like it’s just part of the First Amendment, which by the way was the goal, but that’s not accurate. It’s just a statute and the First Amendment never intended historically and should never mean that because you’re religious, you have a right to get around the laws that apply to everybody else.
Alison Gill:
I’ve really appreciated your work opposing religious exemptions to school vaccination requirements. I feel like there’s been a lot of state legislative development in that area, for example, in Maine where they’re repealing religious exemptions. And also there’s been some recent litigation in Mississippi in this area that basically say there must be religious exemptions based on I think a state version of RFRA. So I guess I’m curious, what are your thoughts on the state of the law regarding vaccination exemptions and RFRA and how do you think this will shake out?
Prof. Marci Hamilton:
Well, just as we saw with the covid vaccines and the military objections to having to take the covid vaccine, RFRA is creating this leverage to be able to argue that laws that are intended to benefit the common good, the greater good, like vaccine laws should have exemptions for the religious believers, which is ridiculous because the more exemptions for vaccines you get, the more you lose herd immunity and the more danger you introduce to pregnant women, children and the elderly. So it is so sad to see Mississippi even edging close to an exemption for vaccines. Mississippi, if you can believe this, Mississippi was the best state in the country for vaccine compliance.
Rebecca Markert:
Really?
Prof. Marci Hamilton:
Absolutely. And the reason for that is they had no exemptions and what they proved, I mean they were a scientific Petri dish, if you don’t have exemptions, you have a lot less illness and you have fewer deaths.
And nobody questioned it in Mississippi. It was just, yeah, everybody gets their vaccines and we just go forward and the kids get them to go to school. Maine is not terribly different, though they didn’t have exactly the same health record. But the push back to reinstate the religious exemptions that we have been working so hard to remove over the last 20 years is a direct demand to let people die of treatable illness. When the governor of Kentucky let his children go to what he called a chickenpox party, I was appalled because not only is chicken pox very uncomfortable and sometimes deadly to children, but it’s the basis for shingles, which is one of the most painful diseases known to man. So that’s good parenting. No, it’s not good parenting. And one of the things we’re working on at CHILD USA, well the main thing is the civil rights of children. Children should have a civil right to be vaccinated, so they’re not sick now and they’re not sick in the future.
Alison Gill:
I really appreciate you bringing up the civil rights of children. There’s been this wave of parental rights bills across the country, and a lot of them have language that’s almost exactly taken from RFRA saying that basically any infringement of parental rights, it gets strict scrutiny protection. So instead of any sort of infringement on the rights of free exercise, any infringement on parental parental rights, and I sort of see this as the next iteration of RFRA. And I’m curious if you have any thoughts on this, if it’s an issue that you’re watching, especially being such an expert in this area.
Prof. Marci Hamilton:
Absolutely. So what’s going on with parental rights is, so the world signed on to the International Convention for the Rights of the Child, and it included rights to healthcare and vaccines and education and not being abused and not being separated by your parents. Everyone but us. The last two holdouts were Somalia and the United States. The United States did not sign on to the Rights of the Child. Every other country agreed with it, including the Vatican, because of the parental rights movement at the time. So this is decades ago, the concept of parental rights is intended to hand back to parents the rights they’ve lost to harm their children. We did not have a law against child abuse until the middle of the 19th century. In fact, the first organization to prevent abuse was for animals. The ASPCA was founded before the first organization for the prevention of cruelty to children. And so we have had painstaking, but honestly good advances for the rights of children, the right to speak, the right to be fed, the right to be educated, the right not to die from a medical illness that your parents would let you die from. So what we got right now is a backlash from the conservative parents’ rights movement. But what the American people need to fully understand is that what parental rights means is that the law does not protect the child from harm, and that’s just intolerable.
Liz Cavell:
I don’t know if we quite got this far on just the quick elevator pitch of what is RFRA, but our organizations have argued and so have you, that RFRA is unconstitutional. And so I just want to kind of explain what our argument is, why RFRA is unconstitutional.
Prof. Marci Hamilton:
So of course I took RFRA to the Supreme Court in the Boerne v. Flores case, and we argued and the court agreed that RFRA was unconstitutional in a variety of ways. One was that it was unconstitutional for the federal government to force the state to dance to a different tune with respect to religious liberty. But the more important ones were that it was a violation of the separation of powers. I mean, think about this. The Supreme Court reaches a conclusion, a holding that there is no right to get around the law when it is neutral and generally applicable. So that’s the law that we have from the First Amendment. And then Congress enacts a law that says, “Hey, Supreme Court you nothing about the First Amendment. Here’s what we say the standard is.” This was a literal hijacking of the First Amendment by Congress and the court said as much in the Boerne opinion.
The third reason that it was unconstitutional according to the court, was that this was a takeover of the constitutional amendment process. If you don’t like the result of the court’s interpretation, your only route normally is to get a constitutional amendment. In this case, they simply walked across the street from the court to Congress, got a simple majority vote in Congress to change what was supposed to be the religious liberty standard in the United States. So it’s unconstitutional in three different ways. But the lobbyists for religions, as soon as Boerne was decided, went to the airwaves, went to Congress and said, oh, it was really only unconstitutional as applied to the states, and so we can now have a federal RFRA. And at the same time, the Rutherford Institute, a conservative Christian organization, started to spearhead moving RFRA across the country in numerous states. So we ended up with a federal RFRA and now half of the states have their own RFRA.
Liz Cavell:
We know the Supreme Court can analyze statutes and it can also analyze constitutional language. What RFRA is doing is changing the standard, the test or the analytical framework by which the court should analyze constitutional text. That’s not a normal statutory function of Congress. And so it’s actually wild how widespread this movement has been only in the religious liberty context to control the way that courts analyze our constitutional rights by legislation.
Prof. Marci Hamilton:
Well, so I don’t completely agree with that interpretation. So what they intended to do was to get the first Amendment to be interpreted by Congress and that Congress then was setting the standard for the First Amendment, which is what you just described, but actually in effect with respect to all the ways it’s been interpreted, they passed just a statute because they didn’t have the power to change the First Amendment. So what we ended up with is a First Amendment side by side with a statute. The worst thing that’s happened is that the First Amendment is now sidelined in the vast majority of religious liberty cases where RFRA is available and RFRA has become the governing standard, and it’s become the way in which certain religious entities, evangelicals, conservative Christians and Catholics are saying that’s how you interpret religious liberty. So they are intentionally saying A statute’s the Constitution, it’s not, it’s a statute. It could be repealed any day and it wouldn’t have any effect. But by displacing the First Amendment and putting in this statute, in effect, religious liberty against the government is now being dictated by a simple majority in Congress and that’s where the harm lies.
Alison Gill:
But since RFRA has been put in place, there have been numerous developments, especially recently on the court that undermine Employment Division v Smith and move us closer, I think, to a RFRA framework, even if the court hasn’t affirmatively taken that step. Isn’t that right? How do you see things progressing in that direction?
Prof. Marci Hamilton:
Well, the court hasn’t yet interpreted the Free Exercise Clause dramatically differently. I mean, all we have is Fulton, and in Fulton, what we found out is that Amy Coney Barrett looks at things a little bit like Justice O’Connor and says its context dependent standard is going to be. But of course in Fulton, which was the Catholic foster and adoption organization that didn’t want to have to adopt to gays. In that case, the holding was that the city was being discriminatory because it wasn’t applying its standards evenly. So they haven’t done that. What they’ve really done with the Establishment Clause though, which is a different side of the coin, is to completely decimate it, they have removed all of the interpretive mechanisms except a very few for the Establishment Clause, which has opened the door to say that there is no limit on religion. So under the free exercise Clause of the Constitution, under the First Amendment, you have to obey neutral and generally applicable laws.
But under RFRA you don’t. And then under the Establishment Clause, there are no meaningful limits on your access to government funds, on your access to government messaging and on your ability to force public school systems and other neutral systems that have dollars forcing those dollars to the religious groups. So RFRA is bad for the country in terms of what people have been brought to believe that religious believers are on a higher level than everybody else. But secondly, the Establishment Clause doctrine has opened the door for religion to now fund itself through government funds, and essentially James Madison’s turning over in his grave.
Alison Gill:
I think that’s a really great point about the Establishment Clause. I was referring not only to Fulton, but also to the Masterpiece Cakeshop case and to the Tanzin case. And so it’s been not, I think in a few different ways that they’ve been sort of attacking the basis of Smith from different angles, you know what I mean?
Prof. Marci Hamilton:
Well, no, but Masterpiece, they went off on a technicality on the public accommodations laws. The one true disaster is the Elenis case, the case involving the wedding website that insisted on discriminating against gays. In that case, though, it wasn’t decided on free exercise or Smith, it was decided on speech, and it was a super valued speech that all of a sudden no interest is strong enough to overcome, including discrimination law. There’s really three tacks the court is taking to empower religion and disempower the culture. One is the Establishment Clause being decimated. One is letting RFRA be interpreted so broadly that it permits discrimination and then free speech being used as an absolute right to get around the laws that should apply to everybody else and particularly the public accommodations laws.
Rebecca Markert:
We’ve seen so many questions presented to the court trying to overrule Employment Division versus Smith. Do you think that’s still a top target for them, even given their recent wins over the last two years at the court?
Prof. Marci Hamilton:
Well, the Christian nationalist movement, which is really the amalgam of very conservative Catholics led by Leonard Leo at the Federalist Society and Evangelicals, it’s not just about getting rid of Smith anymore, it’s getting as many rights as they possibly can against everyone else in the culture. They lost hands down the culture wars, and they are now trying to win a space for themselves where the culture war conclusions – there’s gay marriage, you have to treat gay couples like any other couple, you have to treat gay families as families and not as second class citizens, the rights to abortion were increasing until Dobbs – so they want a universe to turn back the clock and they want to live where none of those rules apply, and they’re rioting RFRA as hard as they can to get there. One of the ugliest successes they’re having is the ability to discriminate against gays in just ordinary for-profit corporations.
And it’s all based on RFRA undermining Title VII. So what’s their agenda? Their agenda is to never mix with gays. Their agenda is to never let women have abortions, and their agenda is to make sure that children are their property without independent rights. And when you take those three together and you see what they’ve done with respect to the RFRA claims, the attempts to enlarge the pre-exercise claims, which have not borne fruit quite yet, and the Establishment Clause, it’s time to wake up. It’s literally time to wake up. And I’ve been sounding this call to action since 1997 when I won the Boerne case, and it’s just even more true today. We are facing a movement to theocritize the United States in their vision, and everyone, including the vast majority of religious believers in the United States, the secularists and everyone else needs to stand up and say, I don’t want to live in a theocracy.
Alison Gill:
I really appreciate that call to action. I think you really have a clear tone about where things are going and an important warning. I wanted to ask about discrimination. You mentioned of course that RFRA is being used to undermine discrimination laws, and I guess there was some recent cases in the Fifth Circuit or maybe one case in the Fifth Circuit, the Braidwood Management v. EEOC, and I think it’s now known as US Pastor v. EEOC, where there was a decision. I wonder if you could talk a bit about that case. I think it’s a really important one to understand what’s happening.
Prof. Marci Hamilton:
We have several cases, one in particular that’s made the most progress in which essentially what’s happening here is that we had an interpretation of Title VII. Did Title VII cover gays, and the answer from the Supreme Court shocking to the world, but they weren’t paying attention. The answer by the Supreme Court through Gorsuch was, yes, Title VII covers gays, but in the middle of that decision, he said, but don’t forget everybody, RFRA creates opportunities to discriminate that nobody else gets. And so what’s happened is the movement to move gays away from the far right citizens is that they are now in court and they are arguing that their religious liberty requires them to not have someone who is gay in their employ. So far, they’ve won. And the ugliness of this is that it is the expansion of this concept that not only do you have the right to exercise your own religion, to believe that you and your family shouldn’t be gay, not only is there that right but see, they’ve expanded it to their proselytizing model, which is they are insisting on the right to force others not to be gay. And that’s the Rubicon, that’s where you enter a theocracy and that’s what they’re seeking.
Alison Gill:
And we’re talking about suits against third parties too potentially, so this isn’t even about the government, which is normally what RFRA is used to sort of protect against government action, right? We’re talking about if a company is discriminating, a religious company, and a person who is employed there doesn’t want to face this religious discrimination and sues, their argument is that they should be immune from federal non-discrimination law in this area. Is that right?
Prof. Marci Hamilton:
Well, it is. I mean, what’s going on here is that every federal law is mediated by RFRA. There’s not a single federal law the way RFRA is written that does not have this blanket rule that there has to be this draconian accommodation of religious believers. And so when I testified against the reenactment of RFRA after the Boerne case, one of the things in my testimony was, if you enact RFRA again and as applied to federal law, you are going to water down civil rights. You’re going to water down Title VII. And everybody at the time was like, oh, you’re overinterpreting. That could never happen. It’s such a compelling interest. It’s the least restrictive means. And lo and behold, it’s being used to undermine Title VII. And of course, the ministerial exception cases, Hosanna-Tabor is being used to say that ministers, not just clergy, but ministers in religious organizations can be fired for discriminatory reasons, and the religious organization is not responsible. So everybody needs to understand what they’re trying to do is carve out a universe where gays don’t exist for them, where they don’t have to deal with them, they don’t have to have business with them, they don’t have to have them in their employee, and they don’t have to treat them with respect. As I said, this is their way of winning back the culture wars that they so badly lost.
Rebecca Markert:
Our organizations, both Freedom From Religion Foundation, and American Atheists, we were opposed to RFRA also from the beginning. And we have called for its repeal. You, Marci have written a brief arguing just that for the Freedom From Religion Foundation. But given that we are now in the wake of this ultra conservative Supreme Court majority, and the federal bench has changed so drastically, the legal landscape has changed so drastically. As you mentioned before, the Establishment Clause has been decimated. We do believe that they are working to elevate free exercise rights only of Christians and not anybody else, but what our organizations are facing with, and a constant conversation piece that we have in many meetings and litigators meetings is, is it now the time to embrace RFRA as non-believers and then try to use it to advance a secular democracy or a secular government? What are your thoughts on that?
Prof. Marci Hamilton:
Well, truth be told is that as bad as I think RFRA is both public policy-wise and also constitutionally, I represent seven members of the clergy in Florida who are invoking RFRA against the Florida abortion bans. I was called and asked if I would be involved in such a case. I said, only if we can have a spectrum of believers to show the country that a majority of believers believe in reproductive rights as part of their faith, including that secularists have positions on abortion that have nothing to do with the Dobbs conservative Catholic ruling. And so right now, RFRA is a weapon that can be used to show that every religion, every believer has a right to be treated with its special treatment. And I think ultimately, once the country wakes up and it realizes that it is in fact a diverse religious country where the vast majority actually believe in reproductive rights, I think once we get to that point, I think RFRA starts looking a lot less attractive to these groups.
I’ll never forget, Georgia representative Bill Barr voted for RFRA, and then there was a story that it was being used by Wiccans on an army base in Texes. And he publicly stated that RFRA was never intended to help them. And I think that’s exactly what’s going on here, right? What’s going on here is they patched together a group of religious groups that had no clue what they were doing, including the ACLU, People for the American Way, Americans United, yay, yay, yay for religious liberty RFRA. They had no understanding that they were now going to undermine one of the great things about American society, which is that we have lived for centuries without a religious civil war. You can’t find that in many countries, and RFRA undermines that by making certain believers higher up. But it was all being driven underneath by the evangelicals and conservative Catholics, as I said earlier, who had been joined together in the 1980s in order to put into politics their religious beliefs. So we’re at a crossroads now. The country either stands up and says, religious liberty for everybody, but not extreme religious liberty for anybody, or we really are facing the beginning of a theocracy. And the irony here is why did people settle early in the United States because they were escaping deadly theocracies. And here we have a group that is intent on reinstating the kind of tyranny that our founders would’ve found terrifying and disgusting.
Liz Cavell:
You’ve spoken to this Marci about your litigation in Florida representing faith leaders and the spectrum of believers and non-believers on abortion rights. Rebecca mentioned we always have this kind of push and pull as people who kind of loathe RFRA and think it’s unconstitutional, but of course see it being wielded against us. And we spoke with Liz Reiner Platt, who works at Columbia on the Law, Rights, and Religion project, and she’s a big advocate for using religious exemptions including state and federal RFRAs as a tool for progressive ends. And so I know you’re doing it, and I’m just wondering if we can speak a little more broadly about what you think about it as a strategic approach. Do you think it’s a winning strategy? Have you seen wins on progressive use of state RFRA?
Prof. Marci Hamilton:
Interestingly, state RFRAs aren’t invoked a whole lot, which I find fascinating.
Liz Cavell:
Interesting.
Prof. Marci Hamilton:
And they often don’t win. What is dividing us right now, in my view, is a country where a minority of religious believers have become persuaded that they have the way forward for everybody else, and that way forward is that everybody else has to obey their dogma. So what happens when RFRA is used for everybody? It disempowers the single use of the RFRA by the radicals. Having said that, I believe, I will always believe, of course, I’ve got books that say it and I’m writing another book now saying it again. RFRA is divisive to society because instead of focusing on what is the best law that’s the best for as many people as possible, it leads you to ask the question of how can I get away with breaking this law?
And that is how you lose unity. It’s how you lose community. It’s how you lose public health. Before the RFRA reasoning infected the American public, essentially the wide majority of Americans believed vaccines were absolutely necessary, and the only exception to that were Hollywood types who were persuaded by a doctor in London who had made up his data and had to stop being a doctor. So that’s what was going on with the vaccine movement. You start throwing RFRA at the vaccine requirements, and then you end up with, in the military individuals who spend tremendous amounts of time together, some of them don’t have to be vaccinated, some of them can make everybody else sick. That is the opposite of what the military is trying to accomplish in the greater common good. And the same is true with respect to any law. Here’s my vision for how it should work. I said this first in God Versus the Gavel, the first edition, I said it most recently in 2014 in the second edition.
What should be happening is that if you want- first of all, RFRA should be repealed – and if you want a religious exemption, you want an exemption to a law for any reason, you should have to go to the legislature and make your case. And if your exemption from that law doesn’t harm anybody else, fine, then the exemption’s legitimate. But if your exemption’s going to harm people, say kill people or destroy children’s lives, those exemptions are illegitimate. And I would include right now the faith healing medical exemptions in states like South Dakota where you have graveyards, where there are more infants buried than adults. When you’ve got a situation where there’s going to be death and illness and the destruction of people’s lives, there should be no religious exemption. I don’t care what your religion is, and that’s the future. It should be a matter of public debate and discussion. Most of these religious exemptions in existence right now, were not subjected to public discussion, and the RFRA discussion was covered in misinformation and disinformation, and to this day, people think they have what is good religious liberty and what they have is destructive.
Rebecca Markert:
So we only have a few more minutes left. I feel like I’m probably the human interest story co-host of this podcast. I’m just so–
Prof. Marci Hamilton:
Somebody should be.
Rebecca Markert:
I’m always really interested in hearing people’s backstories, and you are one of the very few women who have actually argued before the US Supreme Court, and I would love to hear just some of your thoughts or an anecdote from that experience.
Prof. Marci Hamilton:
It’s ironic that when I did the oral argument in the Boerne case, the Washington Post – I got a lot of good reviews on the argument, partly because the justices were in sync with what I was saying – but there was an article the next day that very few women repeat at the Supreme Court having been there once and been successful, and I’m one of those people. I have never been back at the Supreme Court. Now I’ve written amicus briefs that have been cited. I’ve written amicus briefs that the reasoning has been borrowed, but it’s a man’s world, too much of a degree, and that hasn’t changed a whole lot, even now 30 years later.
Rebecca Markert:
This has been a fabulous discussion, and I think that our listeners are going to learn a lot. I know I learned a couple of new things after listening to today’s conversation. Do you have anything else that you want to add before we go?
Prof. Marci Hamilton:
The only thing I close with is this. It will take the American people reclaiming true religious liberty, which is kind to others, for us to get out of the emerging theocracy we’re facing. People are going to have to stand up and say, I’m a believer, and I don’t believe that you should be able to exclude gays. I’m a secularist, and I stand up for gays in the workplace, and literally we need a repeal of RFRA. Until that happens, we’re still at risk of what could end up being, terrifyingly, a religious civil war.
Liz Cavell:
Thanks, Marci. You said you’re writing another book. Do you have a sense of when we can read it? When it will come out?
Prof. Marci Hamilton:
Come out? So it will come out in ‘24. The title is, you’re going to laugh. The title is I Told You So.
Rebecca Markert:
I actually love that.
Liz Cavell:
Yeah, I appreciate that.
Prof. Marci Hamilton:
So I’m putting together my favorite of all the writings I’ve done in 10 chapters with a lead into each chapter to say, guys, guys, come on. Come on. This has been a threat since 1997. Let’s do something about this.
Liz Cavell:
I love that. I love, it’s your Nostradamus text. Let’s look at all my prophecies come true.
Prof. Marci Hamilton:
It’s my last stand. Maybe I’m standing at the Alamo, but I’m determined. I’m not leaving silent.
Liz Cavell:
Well, I look forward to reading that one.
Rebecca Markert:
Me too.
Prof. Marci Hamilton:
Thanks. Thanks for having me today and putting up with my insane schedule.
Rebecca Markert:
No problem. Thank you so much.
Liz Cavell:
Before we wrap for today, I’m calling all listeners, if you have a burning question that you would like answered by me or Rebecca, we’re going to be doing a holiday mailbag episode that’ll be released in January. So again, you can go to our website, we-dissent.org, or you can hit us up on the socials and submit any questions you have about the secular world, the Establishment Clause, the Free Exercise Clause, all your burning constitutional law questions, send them to us, and if we can, we’ll answer them in our January episode.
Rebecca Markert:
So that is it for today’s episode. If you don’t already, please be sure to check us out on our socials that Liz mentioned. We are on Twitter, which is now X, Facebook, and on Instagram. You can also find us online we-dissent.org. We’d also love to hear how you are enjoying our show, so please remember to leave us a review. Thanks so much for tuning in. I’m Rebecca Markert.
Alison Gill:
I’m Alison Gill.
Liz Cavell:
And I’m Liz Cavell. Thanks for listening.
Rebecca Markert:
We Dissent is a Joint production of the Freedom From, Religion Foundation and American Atheists. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Production support comes from Greta Martens and FFRF’s summer law clerk, Emily Romero. Audio engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
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