Liz and Rebecca answer your burning questions on religious liberty issues and more! This episode, we reach into the mailbag and take on topics from YOU, our loyal listeners.
Background
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, the legal director at the Freedom From Religion Foundation.
Liz Cavell:
And I'm Liz Cavell, also with the Freedom From Religion Foundation.
Rebecca Markert:
We are without Alison Gill today. She's taking a break this month, but will be back with us next month. We want to wish everyone in the We Dissent community a happy New Year and all the best for 2024. In today's episode, we're going to do something a little different.
Liz Cavell:
Yes. So we have been asking you listeners for your questions, and today we're going to reach into the mailbag and answer some of our listener questions for you. There's some legal questions, some non-legal questions, some questions about the podcast. So we're just going to dive right in and cover as many of these as we can.
Rebecca Markert:
I'm really excited about today's episode because I feel like we've been talking for almost over a year at you. This was fun. We could hear what's on your mind and what kind of questions you have, some resulting from the shows that we've done and some that were not, just some burning questions that you had. So we're going to dive right in, like Liz said, and get started with the first question that comes from fellow podcaster, Jesse from the Sacrilegious Discourse podcast. They write, what is your process for researching and preparing each episode? Are you winging it with notes or do you prepare a script? Do you do all the prep yourselves or do you have other people working on it behind the scenes?
Liz Cavell:
So I love this question. Are you winging it or do you prepare? Because I don't know if I love or hate that you can't tell.
Rebecca Markert:
No, it's great.
Liz Cavell:
So the answer is kind of both. We choose our topics that we're going to cover for each episode. Alison, Rebecca and I mapped that out pretty far in advance to try to kind of catch what's timely month by month. And sometimes we shift it around when things happen, like the Supreme Court comes down with a case or something like that. And so when we're preparing to record each episode, we make an outline of the topic and we fill in pretty detailed notes, especially to remind ourselves of really technical information like cases and legal history and things like that. And then we go off script as much as the outline allows us to. As we're recording each episode, we try to generate a conversation and follow the outline to keep ourselves on topic.
Rebecca Markert:
We really want to be conversational and not so scripted. The outline provides guideposts to go through the topic. The background research really helps remind us of some of these cases that we may not have read since law school. Some of the cases we read continuously but still just want to have the facts down. I always like to be very, very prepared. I like to have longer outlines that have more research, more detail, more is better than less. In my book, and this is probably another reason why I was excited to do this episode because whenever we're giving speeches and there's a Q and A portion, I always feel rushed and that I can't give everybody the answer that they deserve, especially from an attorney. And so this episode allows us to really kind of deep dive into these questions and hopefully give you a really well thought out answer. I like to be really prepared for episodes. We don't script line by line.
Liz Cavell:
Yeah, we don't wing it.
Rebecca Markert:
We don't wing it, but–
Liz Cavell:
We don't not wing it, right? As far as people working behind the scenes is definitely a team effort. We do a lot of the production and editing and stuff ourselves, but we do have a lot of hardworking people at our organizations that support the podcast. Have to shout out by name. Greta, who is our legal assistant at FFRF, she does a ton of work to get the podcast published and out to the public with show notes and a transcript and things like that that take a lot of work. She maintains our website. She does a lot of our social media. We also have a staffer, Rowan Hahn, who does some of our social media promotion at FFRF. We have summer law clerks both at FFRF and American Atheists and interns who have compiled episode outlines and done background research for us as well.
Rebecca Markert:
It's always a great help because they put in a ton of research into these issues. Everybody who works on the show does get credits at the end of the show, so you'll often hear Greta Martens' name and our law clerks who've helped over the summer.
So our next question is from Helen Wolfson and she writes, "I was disappointed that the episode on the RFRA didn't mention the Do No Harm Act. I know that it's not a panacea, but it is an attempt to mitigate the disastrous effects of RFRA. For your Mailbag episode, I'd love to hear you share your thoughts on the Do No Harm Act. I would also love to hear what Marci Hamilton has to say about it. Thank you for all the work you're doing. You give me hope." That's really great to hear.
Liz Cavell:
We needed that. The second this question rolled in, I just did the biggest face palm because you're so right. We didn't mention the Do No Harm Act when we were talking about RFRA. We were just sitting there with stars in our eyes listening to Marci Hamilton talk and the hour got away from us. But it is a piece of legislation that has been introduced in both chambers of Congress that is trying to amend the Religious Freedom Restoration Act, RFRA, to undo some of the damaging things that RFRA has been used to do in recent years.
Rebecca Markert:
And just for our listeners, we interviewed Marci Hamilton, who's a professor who worked extensively on this issue in episode 24 about the Religious Freedom Restoration Act.
Liz Cavell:
That's right. So just a little more on the Do No Harm Act. For those of you that were curious and notice that we didn't mention it in our episode, just a quote from the backers of the Do No Harm Act to what the purpose of the ACT is, is to return RFRA to its “original purpose,” which is to protect religious exercise while ensuring religious freedom is not used to erode civil rights protections. It basically states certain circumstances where a religious exemption could not be applied under RFRA. And basically it involves situations where giving a religious exemption would cause harm to a third party. So specifically, some of the areas where the Do No Harm Act would limit the application of RFRA from being used would be non-discrimination laws, which we've seen a lot of religious actors arguing that they should be exempt from non-discrimination laws because serving gay patrons violates their religious freedom. That obviously harms third parties.
Employment laws that govern wages and collective bargaining, child labor and protection laws. A very important pet issue for Marci Hamilton and something that is really rife with religious exemptions; laws that are meant to protect children. Access to healthcare, and then services provided through a government contract or grant and services by government officials. So governments contract with private organizations to provide adoption services and foster care. And we're seeing a lot of religious organizations that seek those government contracts that also want religious exemptions. And of course, those exemptions result in harm because of course, they're denying adoption services and care on the basis of religion, usually against gay and LGBTQ+ adoptive parents and sometimes children.
Rebecca Markert:
And both the Freedom From Religion Foundation and American Atheists wholeheartedly support this piece of legislation and have, since it was first introduced a number of years ago, and because you wanted to hear from Marci on this, we did send her an email and ask her what her thoughts were. She responded this: “I assisted in drafting it when it was first introduced and support it wholeheartedly.” Now, the Do No Harm Act has been introduced in both chambers of Congress. It hasn't had much movement yet, but we are hoping that it will see some committee hearings and some movement in the next year or so.
Liz Cavell:
Yeah, and I'll just say one thing it does represent that's progress. If you listen to the last episode, you heard Marci Hamilton talk about how oblivious so many parties were to the harm that could be caused by RFRA when it was passed in the nineties. And it was this broad coalition of even progressive groups getting behind this legislation and Marci kind of just being the lone Ranger, just trying to warn everyone. And what the Do No Harm Act does represent is a consensus, at least amongst progressive politicians, that RFRA is causing more harm than good. It has grown a lot in its co-sponsors. It has wide sponsorship and a lot of support. It does represent that Marcy's warning from the early days of RFRA is certainly being felt. Those consequences are being felt by legislators
Rebecca Markert:
And certainly short of repealing RFRA, which Marci and FFRF and American Atheists would like, this is really going to limit its impact. And like Liz said, curb some of these unintended consequences that came from passing the bill so quickly back in the nineties. So our next question, it's @WillyWil33. This obviously came through Twitter, I guess I have to call it now X, he writes, “Non-legal dude here. I've noticed that precedent was/is a big deal in law. I've also noticed what looks like a disregard for stare decisis. I learned that term last year. How worried should I be about that? How big of a deal is that going forward?”
Liz Cavell:
So geeks that we are, Rebecca, and I saw that question and thought, ooh, interesting. Stare decisis is a really big deal and very important in our system of constitutional law. And it's one that of course she, Allison and I have alluded to and talked about as we've discussed the court and Supreme Court cases, but I don't think we've ever had a chance to really just kind of break it down directly. So it's a really good question, I think. Why is it a big deal that the current Supreme Court seems to be totally disregarding this principle of constitutional interpretation?
Rebecca Markert:
Stare decisis is Latin for to stand by things decided. So it's the principle that courts should normally follow the rules of their prior decisions. It is a principle that lawyers and judges consider wholly because it creates a respect for the rule of law. It promotes even handed decision-making. It creates a stability in the law that in theory is out of the reach of the ideology or political will. And this stability, of course, allows litigants, their counsel and judges to rely on decisions previously handed down when they're making their arguments to the court.
Liz Cavell:
Right? And it makes sense, right? We want citizens to be able to rely on what the law of the land is going to be, especially these big questions of constitutional law interpreting our constitutional rights – that it's not just going to change on a dime every time there's a change in the court personnel, that there is a heavy presumption in favor of ruling consistently with the cases that have come before. It's not a blind adherence to precedent, but it is this strong presumption that courts are going to follow what previous courts have done and they're not going to disregard those old rules without really good reason.
Rebecca Markert:
So like Liz mentioned, it's not that the court never overrules precedent. Of course it does. And one of the biggest examples, and probably the best known examples of that is when the Supreme Court handed down Brown v. Board of Education in 1954, which directly overturned separate but equal, which came down from Plessy v. Ferguson about 60 years prior.
Liz Cavell:
So one obvious recent situation, case that involved stare decisis and the court ignoring principles of stare decisis is notoriously the Dobbs decision. The court overruled Roe v. Wade, which was decades, 50 years worth of settled precedent. And the reason why it was so controversial in addition to being horrible for humanity is because the court just completely cast aside the role of stare decisis in Supreme Court analysis and did it along partisan lines, a six to three decision. One of the things that you would normally expect to see when the court is overruling a prior precedent is unanimity in the court. And that shows that there's wide consensus on the fact that a prior precedent was wrongly decided, or that it no longer works with the evolving standards of the society. You're not supposed to have prior constitutional law precedents being overruled along fractured closely decided party lines because of course that indicates that precedent is being overturned and cast aside for ideological political partisan reasons.
And that's what happened in the Dobbs decision. Now, in the Dobbs decision, justice Alito did lay out the five factors that the court should consider when overruling a prior precedent. And I'm just going to list those so you have an understanding of what the court's looking at. And that's one, the nature of the error. Two, the quality of reasoning. Three, the workability of the rules for the disruptive effect on other areas of the law, and five, the absence of concrete reliance on the law. So you might think like me, all of those factors would weigh in favor of keeping Roe v. Wade as the law of the land. There of course, like many things in the law, completely malleable to the judge's ideological aims. And so Justice Alito held that these factors weighed in favor of overruling roe. That's just an example of the court just ignoring stare decisis and not prioritizing that principle of law because it wanted to see a different rule.
Rebecca Markert:
And of course, squarely in the state church separation world, we've seen the Lemon Test from the 1970s also being cast aside. It wasn't specifically overruled by the majority in the Kennedy v. Bremerton decision, but it was effectively overruled. And I think Justice Sotomayor mentioned that it was overruled. And we also saw a significant shift in the law with the line of government funding of religion cases with the Trinity Lutheran to Espinoza to the Carson v. Makin decision. So this court has really been hell bent on upending precedent, overturning prior cases and things like that. Which brings us to the second part of your question, which is how big of a deal is this? And I think we both would say for the recent decisions overruling or upending civil rights cases, it's a very big deal. It's very, very rare that bad case law gets corrected quickly.
And the decisions this court makes now will likely be the law, the settled law for our lifetimes, remember it took 60 years for the Supreme Court to overrule separate but equal the Plessy v. Ferguson case 60 years. That's a generation, and there's going to be a lot of work to undo the damage that this extremist court, the Roberts Court is doing. And so that's why you always hear us talking about court reform on this podcast and why we also put an emphasis on why it's so important to understand also what's happening at the legislature, both on the federal and state levels. In order to secure civil liberties for everyone and to limit the damage that this court is doing, we really need to use all of the tools in our tool belt and look at other ways to safeguard those liberties.
Liz Cavell:
That's right. I'll read the next question. Okay, our next question came from Jason Coughenour. I hope I'm saying that close to right. And this question is about the Lemon Test. Since the Lemon Test was primarily a bringing-together an organization of previously existing case law and precedent, is it still possible to make Lemon-type arguments using the underlying case law that Lemon was built on?
Rebecca Markert:
We love this question too because, well, we first wondered, is this coming from a lawyer and second of all, who else is as nerdy as we are? This is a really intelligent question, and I'm just going to give a bit of background. Listeners might remember that the Lemon Test was the test that the court used for decades to evaluate Establishment Clause claims. It came from the Lemon v. Kurtzman case, which was handed down in 1971. It laid out this test. The government action had to have a secular legislative purpose. It had to have the principle or primary effect that neither advanced nor inhibited religion, and it was not to foster excessive government entangled min between government and religion. The Lemon Test held that if any of its three prongs were violated by an act of government, it was unconstitutional.
Liz Cavell:
So a government action such as a bill passed by Congress or just something that a local municipal government does or something that a school district does, would be held to violate the Establishment Clause if it violated any of those three prongs, if it had a flat out non-secular purpose. In other words, the purpose is religious promotion, or two, if it had the effect of advancing religion or three, if the government action resulted in excessive entanglement between religion and the government. So that's a pretty straightforward test that gives judges a framework for evaluating when an action by government violates the Establishment Clause and the Lemon Test was developed in the seventies, and then there were decades of cases that used the Lemon Test to kind of build upon it, but like the person asking the question notes, Lemon didn't just create this test, this analytical framework out of thin air.
It drew upon prior cases going back to the forties that began to develop how the Establishment Clause applies to states, how it applies to local governments and what principles judges should use to evaluate those cases. So for example, the first cases that evaluated public school prayer, religion in the public schools, those cases came down in the forties. And so those courts that decided those cases set out principles that explained why those types of actions by public school districts violate the Establishment Clause and those principles were kind of collated into this analytical framework in the Lemon case. But those principles have been part of the case law for four decades before the Lemon case was decided.
Rebecca Markert:
And at the Supreme Court, the justices have never been too keen. The conservative justices, I should say, have never been too keen on the Lemon Test. This is where you hear Justice Gorsuch talking about how it's unworkable. It's caused chaos and confusion. And I've noted in previous episodes that the only place there was really confusion on this test was at the Supreme Court. This test was really helpful to lower appellate courts and district courts. It was very even handed in its approach, but nevertheless, it was always this sort of tug of war on the Lemon Test up at the Supreme Court. And in 1984, in a case known as Lynch v. Donnelly Justice, Sandra Day O'Connor proposed a clarification for the Lemon Test. This was known as the endorsement test, which says that the question should be whether the government has acted with a purpose or effect of conveying its endorsement or disapproval of religion. Both of these tests, the Lemon Test and its endorsement test have been effectively overruled in the Kennedy v. Bremerton decision. Justice Gorsuch wrote the majority for that opinion, and he was quoted as saying, “This court long ago abandoned Lemon and its endorsement test offshoot.” That is the wording that Justice Sotomayor argues that the court, the majority on the court was using to overrule and completely repudiate Lemon, even though they did not use those exact words, “We are overruling Lemon.”
Liz Cavell:
Right? They like to pretend that it wasn't them overruling it, it was prior courts abandoning it, but right. That's just more gaslighting by this court because however, kind of inconsistently the Supreme Court applied Lemon, it has never been abandoned formally or overruled until the Kennedy v. Bremerton decision.
Rebecca Markert:
And to your question, yes. I mean there are still parts of Lemon that we would still be arguing. The principles underlying Lemon haven't necessarily been overruled either. I mean, there is still this strong principle that the government can't promote or prefer religion or religion over non-religion. Those the court really hasn't overturned either. The court did in Kennedy v. Bremerton replace the Lemon Test with this history and tradition test, but didn't really outline what that test looks like. And so it really left the courts kind of trying to figure out what does that mean? What do we still have from Lemon that we could use? There are some lower level courts like the 11th Circuit who said Lemon is dead, and we're going straight up with history and tradition. There are some other courts that are using bits and pieces of it. The interesting thing is that there are conservative Christians out there who also don't want to wholly abandon the excessive entanglement portion of the Lemon Test because it would severely undercut some of their arguments in other cases, especially when we're talking about church autonomy cases or the ministerial exception.
Liz Cavell:
Right? The history and tradition test we've talked about on this podcast, is very harmful. I think Allison has called it infinitely malleable. It's just a Rorschach test for what conservative justices think the amount of Christianity and government should be. But I also think it's important to note that you're right questioner-listener, that the principles underlying the Lemon Test are still valid good law. And the Establishment Clause is still a part of the Bill of Rights that does have meaning and application to state and local governments. But the history and tradition test and the way that the court has treated analyzing Establishment Clause violations is a definite signal that this current Supreme Court is hostile to Establishment Clause claims, especially when the litigants are non-Christian or when the government action being challenged benefits the Christian religion.
Rebecca Markert:
It is something all of the lawyers in the secular movement have to contend with. How do we argue those principles underlying Lemon without actually citing Lemon v. Kurtzman because it is not a test that courts will recognize. Very good question. The next question is from Anne Bendixen. She's a very good friend of the podcast and member of our organizations. See your name a lot. So thank you for submitting a question. The first one is, what more can be done to unite groups like Freedom From Religion Foundation, American Atheists, Americans United and others, so that we are a more powerful block? This is also a great question. We get it a lot too because we've seen this with other huge movements in the past where really a coalition effort is really going to be the one that is going to get us across the finish line or secure our civil rights in a way, in a better way than if we were doing it all on our own. And I can tell you that we are already working in a pretty tight coalition, the groups that you mentioned every year for probably the last five years, we have held a secular litigators round table in Washington DC where we come to debrief from the previous Supreme Court term, discuss different strategies and talk about our joint goals and aims for keeping true religious liberty.
Liz Cavell:
Another thing that you may not realize if you follow our groups is that we are often working in coalition on lawsuits. So for example, our groups are working together in the Oklahoma case that is suing over the religious charter school that was just approved in the state of Oklahoma, the first public school that is going to be a fully Catholic school, St. Isador. It's been approved to be a virtual public charter school, and FFRF Americans United and the ACLU are all working together on that lawsuit. Same thing with working together in concert when we're fighting against bad legislation. So we've worked together to combat Christian nationalist bills, for example in Texas, the bill we've talked about on this podcast that has been passed and is the law of the land, and it allows chaplains in public schools in Texas. We've been working very closely to watch that bill as it's moved to become law and to watch and plan for potential litigation, challenging that act of the Texas legislature. And then the same goes for the Ten Commandments bill that is not yet law in Texas, but is still a threat which would require public school districts in Texas to post the Ten Commandments in every single room in every single school. So these are the kinds of things we are in constant contact between our legal departments at FFRF, American Atheists, Americans United and other groups that are aligned in mission.
Rebecca Markert:
You are absolutely right. We need to become a more powerful block. And in order to do that, we need more members and we need more members to be outspoken. We really need to swell the ranks to make sure that these bills aren't passed in the first place, that we have people going to testify against these bills and to let their representatives know that they're not in favor of these Christian nationalist bills, that they favor a strong separation of church and state. We need more people to report violations so that we are able to take action. A lot of times, as we've mentioned on this podcast ad nauseum, we are able to resolve some of these issues just by sending a letter to the government agency or to the school district, but also we really need the boots on the ground to know what's going on in your communities. What sort of violations are you seeing? What sort of things are you seeing that you're not quite sure is a violation, but could be part of this broader movement that we are not aware of? And if it's possible, we really need more people to be plaintiffs in these lawsuits. There's a lot of times when we have something really egregious happening and there's not a person who can be a plaintiff so that we can sue. So I don't know if there's anything else you have to add, Liz.
Liz Cavell:
I'll just add that I think we get this question a lot and just this sense of desperation from people that just want to feel more power from this movement. And I do think it's worth just remembering that despite the persecution narrative of the Christian nationalist movement, they are the Goliath in this situation. We are so extremely outgunned and out funded by the Alliance Defending Freedoms and the First Liberty Institutes and all of these shadow network moneyed organizations. I mean, they have tens and tens of millions of dollars in their annual budgets, and our organizations combined just don't come anywhere near that. And so it's important to remember that we are a minority fighting for minority rights, and that always feels like a struggle even when we're in coalition with each other.
Rebecca Markert:
No, that's a really good point.
Liz Cavell:
So I'm here with all the bummer final thoughts for all these questions.
Rebecca Markert:
But to make it feel a little bit more optimistic or hopeful, I can for certain say that in the 15 years that I've been working with the Freedom From Religion Foundation, I haven't heard so many people talk about state church separation and this idea that religion and Christian nationalism is ruining every single issue that people care about. I mean, really this strong separation of state and church is becoming an issue that more and more people are talking about. More and more people are concerned is being eroded in this country. And more and more people are saying, Hey, isn't there a separation of church and state here? I haven't seen in these 15 years, I haven't seen so many people from so many different ranks and walks of life talking about these issues. And so I really do think that it's not just the minority of us. There are other people who care about things like LGBTQ rights, abortion rights, trans rights, the climate, Black Lives Matter, and prison rights and just voting for democracy. When you're voting to secure our democracy and secure our voting rights, what you're really wanting is a secular democracy, and people are understanding that now, or at least not taking it as for granted as they once were.
Liz Cavell:
Yeah, I think that's right. So Anne asked a few great questions, and so we want to hit on another one that we thought others might be curious about, which is, what are the most important upcoming SCOTUS cases for us to be watching for? And the follow-up question is, which upcoming cases most scare you? So for this term, the Supreme Court is still evaluating petitions for review, and so we're finding out day by day which cases they're going to take on this upcoming term. One big one is called Tingly v. Ferguson. It's a conversion therapy case. It had been under consideration for review by the Supreme Court and was a pretty scary one, a scary issue for this court to get its hands on. And it was just recently denied review, which is good because that means that the Supreme Court is not going to be telling us what it thinks about conversion therapy and the attempts of state and local governments to ban conversion therapy in the interests of child wellbeing. Of course, justices Thomas and Alito dissented from that denial of review. So there's obviously a minority that passionately would like to rule on that issue, but that lives to die another day.
Rebecca Markert:
We were also watching the Covid vaccine mandate cases. There were three cases that went up to the Supreme Court asking for review that were challenging the mandates by the federal government for federal employees and for military service members. Their certiorari was granted, but the judgment was vacated and it was remanded as moot back to the sixth circuit because the Biden administration already rescinded the vaccine mandate for service members and federal employees. So they are not going to hear that case. They just sent it back down because it is no longer a case or controversy under our standing jurisprudence.
Liz Cavell:
And then of course, one big one that we've been watching is the FDA. This is the Big mifepristone pill abortion case that is coming up from the Fifth Circuit. And we all just learned last week, so that’s mid-December that we're recording this, that the Supreme Court will hear this case. So they're going to hear an appeal from the Fifth Circuit on whether or not the, well, it's kind of complex, but it has to do with the FDA's approval of the mifepristone pill 20 years ago, and then the FDA's recent pandemic era expansion of availability of the mifepristone pill. So that is one that I think everybody is very anxious about because it's another abortion case, the first one since Dobbs, we don't need the Supreme Court to rule on any more abortion cases ever, but this is now a direct abortion access case that the Supreme Court's going to hear an appeal on this year or this term. So that's definitely one that we're watching.
Rebecca Markert:
Right now. We are in this timeframe where the Supreme Court did a whole lot to our issue area the last couple of years. They took so many religious liberty cases and upended so much precedent and reversed course in so much of what we do that a lot of the cases I think that probably scare us the most are still languishing right now in district courts or even appellate courts. And so we might not see them at the Supreme Court for a couple more years. But there are a couple of issue areas that I think are very concerning, and the way we can tell that they're concerning is because some of these other organizations like Alliance Defending Freedom, are all over them, like these ministerial exception cases and church autonomy cases. These are ones where they're really just trying to expand exceptions for religious organizations and churches and businesses. I was just talking about this the other day when I first started, what we were really concerned about was just like the typical state church complaints that we would receive about prayer in schools and about displays, religious displays, proclamations, prayer at legislative meetings and things like that. And with the exception of school prayer, most of those issue areas are now dead to us because the Supreme Court has either told us that it's fine for a giant cross to be on public land or that the Constitution allows for funding of sectarian organizations and missions.
Liz Cavell:
Sometimes the constitution even requires it.
Rebecca Markert:
Exactly. And so now, where do these religious fanatics go? Well, they're going to be going more into our private lives versus our public lives. And so like Liz mentioned, they're going to be going into businesses and trying to seek exemptions in this more private/corporate life. I think that's really where we're going to be seeing a lot of them. There is a case that we were talking about or that we're watching in the Ninth Circuit, Cedar Park v. Insley. It involves a health insurance law from the State of Oregon on maternity care and under that state law, maternity care includes things like abortion and contraception. And of course, we are seeing a religious organization claiming that it should be exempt from this law, and that is on appeal to the Ninth Circuit. They are arguing that the law applied to them violates their free exercise rights and their autonomy as a church organization. So those are the types of cases that I think are really scary because it is this theme that we've seen from the Supreme Court where we are eroding state church separation and elevating the free exercise clause by giving more exemptions. These organizations are suing constantly.
Liz Cavell:
Yes, all these religious litigants and now we're talking about businesses and private individuals. They want all of the privileges of citizenship, but they don't want any of the obligations to fellow citizens.
Rebecca Markert:
They want their cake and to eat it too. So they want to be able to get the government assistance, put their religious displays on government land, do all of the things, but then also not play by the same rules as everybody else. They want to be exempted from anything that wouldn't allow them to discriminate and they want to be able to harm other people. So those are the types of cases I think that are most concerning because they are moving to control and impose their personal religion on all of us regardless of where we are in our lives.
Liz Cavell:
And there's so many kind of little sneaky ways to do this. The case that Rebecca just mentioned, the Cedar Park v. Insley, that has to do with overturning a state health insurance law that says maternity care has to include abortion care. It's just like this little niche thing that's not going to get a lot of attention as a culture war case. But the consequences of if a federal court overturns that law as it applies to a religious health insurance provider is huge. And so that's just one example of many where these conservative Christian actors, whether they're groups that provide insurance to non-Christians, employees or adoption service providers, any of these private issues where conservative Christian litigants are looking for exemptions or looking to overturn state laws that protect the rest of us, it has the potential to do a lot of damage to just our civil order. The fact that laws apply in a secular neutral manner to all of us is kind of a big component of our social order. And so these have the potential to do a lot of damage in a really sneaky way.
Rebecca Markert:
Of course, another area of concern is the rights of the LGBTQIA community to even exist. They're being attacked and whenever civil rights are attacked by anyone, that is a threat to all of us, and we should be concerned about that. There's a lot of different ways that this is percolating through the courts. There's a lot of legislation that is looking to curb trans rights. We've talked a lot about this on the podcast before too, but one of the cases, just as an example that we're concerned about also comes from the Ninth Circuit. It is a case, I'm going to screw up the name here, and I don't know if anybody outside of the ninth Circuit knows how to say this, but it's Bates v. Pakseresht.
Liz Cavell:
I think you did a great job.
Rebecca Markert:
Thank you. That's what it looks like. But this case involves a Christian who is suing the State of Oregon over a denial of an adoption certification because she won't agree to support the child's sexual orientation, gender identity or gender expression. Obviously it conflicts with what she views gender identity to be. So those are the types of cases that we're going to see more and more of that are also these cases that many might say are tangential to state church separation. But really religion is underlying all of these attacks on the LGBTQIA community.
Liz Cavell:
And I mean just to drive that home, again, like I was saying a second ago, about sneaky cases that have the potential to have wide impact and do a lot of harm. Like in this Bates case, the State of Oregon, they want to say anyone who adopts in our state has to agree to support the child, the adopted child's sexual orientation, gender identity or gender expression. That's for the best interest of the child. This person is suing to have a court tell the State of Oregon. You can't require that you have to allow this person to adopt kids in your care despite the fact that they will not agree to support the child in their sexual orientation or gender expression. That has the potential to do a lot of harm. And the collateral damage is kids in state care, and that's just one case in the Ninth Circuit that nobody's paying attention to.
Rebecca Markert:
Anne also asks, who would you like to see on the Supreme Court? And I also love this question because I am a big proponent of diversifying the bench. And so when I see this question, I'm not reading it as what people like who specifically do you want to be on the court? But I'm looking at a profile of judges like what type of judge would you like? And that is also something that I think everybody should think about and know so that they can tell their legislator, specifically their senator, this is the kind of person that I would like to see on the federal bench. And when I think about that, I really want to have somebody who is highly qualified and who is diverse in their background, in their person and a judge with a strong commitment to equal justice for everyone. And obviously a proponent of true religious liberty for all Americans would absolutely understand the importance of a robust separation of church and state in our country.
Both the Freedom From Religion Foundation and American Atheists have worked together with the Alliance for Justice, who is one of the leading groups on reforming the bench and encouraging the Biden administration to prioritize judges. And they have released a statement we'll put in the show notes that explains what type of judge we would like to see on the bench. I also think that in addition to diversifying the bench and making sure that we have more women on the bench and that we have more racial minorities on the bench, I also want to see a diversity of practice. There's a lot of times where we assume that law professors and other legal theorists should be on the bench, but I really want the federal judges to also have some sort of composition where there are actual practitioners on the bench, people who have been litigating these cases day in and day out, and really understand the impact of what these lawsuits do to real people.
Liz Cavell:
I don't know if we've had a chance to talk about it a ton on the podcast yet, but maybe we've alluded to it. The current federal bench, especially from the Trump administration and back before President Biden has made any kind of dent in this, has such an outsized influence of corporatists; lawyers and professionals that come from a corporate law background or they come from big money interests. They are not by and large people who have practiced in other areas of the law that represent actual human beings, let alone in defense of civil rights or criminal defense and things like that. And that's where the federal bench needs desperately a lot of diversity is in professional diversity. We need public defenders, we need civil rights attorneys. We do have plenty of prosecutors on the federal bench, but we don't have many members of the defense bar.
We don't have many legal aid lawyers, landlord tenant lawyers, lawyers that are representing the little guy in big disputes. We have a lot of the attorneys that represent the big-pocketed interests, but not people that have experience representing the interests of individuals and understanding the impacts that these lawsuits and these cases have on regular people. And then another area where I just personally think there's no substitute for this is, I don't know what else to call it, besides class diversity – just people that live real lives and haven't just had the benefit of generational wealth or legacy education. It's such a difference to be a person who maybe you're a first generation college graduate or you have some sort of different class background and upbringing that gives you a perspective and life experience that is just different, but yet is more in line with the vast majority of Americans who are impacted by the rulings that you make on the federal bench. So I think that is vital and desperately needed.
Rebecca Markert:
That is a good point. Earlier I was talking about who ascends to the Supreme Court, and a lot of times it is people who have this Ivy League education and of course they're getting a great education at those schools and they're going to be highly qualified and educated. But those schools, by and large, teach theory, legal theory, and don't necessarily teach law and practice. But there are a lot of really great law schools that really generate a bunch of lawyers who are able to practice in the field and not just understand it from a theoretical perspective, but can really understand how it's going to be implemented, how it's going to impact people, and that for whatever word we're going to use, class diversity or whatever. I think that is really, really important. But I think what we're really getting at is that the federal bench really needs to reflect the diversity of America and what America really looks like.
And right now it does not. The Biden administration to its credit has done a really good job of trying to diversify the bench, but there is so much more that can be done and there are still slots that still need to be filled. Anne had a lot of other questions and they were all so good, but in the interest of time and getting some more questions answered for listeners, we're going to skip some of those, but Anne thank you so much for sending in all of them. We've read them all and we're able to think about a lot of them. Hopefully one day if we do this again, we'll be able to answer more of those questions that you submitted.
But right now, we are going to take a question from Amanda who writes, “I recently followed my hygienist to a new dentist office. The other one closed. First, I noticed that the dentist had crosses in her personal office, but it didn't bother me. However, I notice every time I go, there is more religious references. I've not been preached at directly by staff, but the office business card mentions taking care of teeth from God or something like that. I've been seeing more little signs in the rooms mentioning God, which is starting to make me uncomfortable. The thing that really bothered me, however, is checking out. I noticed in front of each receptionist a paper with a wall of text of some prayer. I couldn't help but think, is this okay? What if they are not Christian or do they only hire Christians? I feel bad because they really like the staff and they do a great job on my teeth. However, is it okay for them to push religion in a private dental office on customers or on staff?”
And I feel for you, because I think finding a good hygienist is so important. I would probably follow them to the ends of the earth too. But this is difficult. Is it okay for them to push religion in a private dental office?
Liz Cavell:
Well, the short answer is yes. Thank you, Amanda, for listening, and thanks for your question. We picked out this question to answer because it raises a really good issue that we hear a lot from people even that report things to our organization like this. And we have to tell them, we're so sorry, but there's nothing that we can do at FFRF for you because your dentist is not a government actor. And for the most part, whoever's in charge there that's making the decor look like the inside of a Hobby Lobby is free to do that. It could be a full on preaching session every time you go to the dentist, and there wouldn't really be anything you as a consumer could do except for vote with your dollars and your insurance and your feet. You can go somewhere else. But you raise an interesting question about staff.
Do they have to hire without reference to religion? And without getting really in the weeds on this, there would be some laws, not constitutional law, but there would be some statutory laws depending on the municipality you live in and the state you live in that probably would prevent an employer from discriminating on certain bases. In terms of the decor, unless it rose to the level of hostile working environment. And there were some sort of claims that an employee could make. They were fired because they were non-Christian, and then they had some cause of action against their former employer. So it's tough. I mean, you could speak up, you could say, I'm a loyal patient, but I'm a non-Christian, and it feels so uncomfortable having Christianity pushed in every part of the experience of being a patient here. Sounds like that might not fall on receptive ears at your dentist's office, but you can take your business elsewhere. And I know that's a bitter pill to swallow.
Rebecca Markert:
Right? We have at the Freedom From Religion Foundation, we have handled cases where there have been things like this where there's wall postings, there's crosses and different government staffers pushing religion on other employees and their coworkers or on the people who are coming to the government office for services. That's an easier thing for us to do because, as Liz mentioned, they are government actors and they can restrict some of that activity, especially if it's public facing. But unfortunately, in a private dental office, there's not a whole lot that you can do except for making these consumer complaints, which we would definitely encourage you to do. I know, depending on where you are in the country, that could be really uncomfortable. And again, I would follow a good hygienist to the end of the earth, but there's probably not a whole lot that you can do if you don't want to speak up. So we have one more question that we're going to address before we close this episode. This question comes from an unknown author named Andrew Seidel laughing because of course many of our listeners probably do know him. He has written two books on religious liberty in America, The Founding Myth and American Crusade. He is currently working for Americans United as the Vice President for Strategic Communications and was formerly employed at the Freedom From Religion Foundation. And he also happens to be Liz Cavell’s husband.
Liz Cavell:
His biggest claim to fame.
Rebecca Markert:
Biggest claim to fame. Yes, we would like him to be known as Liz Cave's husband. So he writes, “Of the books you read this year, which was your favorite?” And before the show, I was joking with Liz that of course, this comes from a man to two mothers, because who has time to actually read books besides Don't let Pigeon Drive the Sleigh, or Junie B. Jones? I've read a lot of children's books this year, Andrew.
Liz Cavell:
A lot of Dog Man in my house.
Rebecca Markert:
There's a lot of Diary of a Wimpy Kid. I did read The Miraculous Journey of Edward Tulane, which was a fabulous children's book, and we actually read it twice. It was amazing.
Liz Cavell:
Is it a novel or like a kid's book?
Rebecca Markert:
Book? It's a novel. Oh, yeah. It's really sweet about a toy rabbit that gets thrown overboard when a little girl is traveling across the ocean and it just follows the adventures of the toy rabbit, who of course can think but can't actually talk, but it's well done. So it is written by Kate DiCamillo, who's written a bunch of other books like The Tale of Despereaux, and Because of Winn Dixie, she's a great author, so I would recommend that. But in terms of books for grownups, probably the best one that I read this year was Allow Me to Retort by Eli Mystal. I am a person who reads a lot of nonfiction type books, even books that are for pleasure, more on the historical side or books like The Immortal Life of Henrietta Lacks. I didn't read it this year, but it is one that I always bring out as one of the best books that I've ever read. But Eli’s book was phenomenal. A great perspective, caused me to invite him to speak at the FFRF annual convention, which he did this past October. Just a really interesting perspective from a black lawyer in this country and one of the best books that I read this year. What about you, Liz was your favorite? Obviously, American Crusade.
Liz Cavell:
Yeah, right.
I too do not have much time for reading, but like I told Rebecca, whenever anyone asks me this question, I just assume that audio books count as books, and I listen to audiobooks all the time. And so that is my main method of actually still reading. Unlike Rebecca, I don't read a lot of nonfiction because I get very escapist with my audio books. So I read a lot of novels and I like mysteries and things that are kind of light. A lot of what I read is kind of fluff, but I've read a few that were really good this year. One that I just read is called Bluebird Bluebird. The author is Attica Locke. It's a really good kind of police procedural type mystery, but it takes place in Texas and it has a lot of themes about race and class and culture clashes, and it's a really interesting book and mystery that's really well written that I really enjoyed.
The few nonfiction books I have read this year have been really interesting, either like World War II history or spy history. So The Spy and the Traitor by Ben McIntyre. He writes a lot of non-fiction books about a really interesting kind of spy history, and that one was really good. All of his books that I've read have been really good, and I read that one a couple of months ago. I am trying to think of one other. Oh, Station Eternity by Muir Lafferty was a really, really interesting different sci-fi book that I read early this year. So that's just a few. I read a lot of fluff too, but some of them really stand out.
Rebecca Markert:
I always want to read more. I think one, for me at least, one of the problems with being a lawyer and going to law school is you read so much that sometimes when I would come home, I'd just like, I just want to watch TV or do something mindless. So it really kind of took the joy out of reading for me for a long time. But I still buy books as if I am still an avid reader, but everybody keeps suggesting audio books for me, and I should just bite the bullet and start doing it.
Liz Cavell:
Exactly. It doesn't feel very joyful or relaxing when you practice law for a living to stare at a page. And also it takes time and undivided attention, which neither of us has, but enter audiobooks because then you can multitask, which is the plight of all working moms.
Rebecca Markert:
That's a great idea. I mean, loads of laundry and an audiobook is probably where I have to go. The other question that he asked was, what is your favorite TV show these days?
Liz Cavell:
So he knows the answer to these questions for me, but one that came back this year after a really long hiatus between seasons that I loved was Good Omens. It's on Prime streaming, and it's a really kind of irreverent, fun, different series that if you like, kind of irreverent, satirical, religiony comedy. It's a really, really good one.
Rebecca Markert:
One that I just watched that I really liked is called Why Women Kill.
Liz Cavell:
It sounds like a docuseries?
Rebecca Markert:
It's not. It's not. So it stars Jennifer Goodwin and Lucy Liu, and I can't remember the third person. But anyway, it is a dark comedy about women who are in these situations where this is going to make me sound so horrible where they want to kill their husbands. But it's really funny and it follows, it's all of the action takes place in this one house, which is owned by women of three different generations. And so one's in the fifties, one's in the eighties, and one's present day, and so the house sees three murders happen, and you're just trying to figure out what caused the murder to happen. And so there's a lot of marital strife and funny things that are going on, but Jennifer Goodwin has so many really hilarious lines. It's really good, and it sounds weird, but it was well worth it. There's a second season too, but I haven't started that one yet, but that was my favorite show from this year. My all time favorite show that I recommend to people these days too, I watched a number of years ago, is Derry Girls. Yes, about some Catholic school girls in Northern Ireland. It is hilarious, especially coming from my Catholic school background. All of it is really funny. I also think it's very irreverent and it's short. There's only like six episodes a season and they're like 20 or 30 minutes. So that's one I highly recommend.
Liz Cavell:
Excellent.
Rebecca Markert:
So I think that's it for today's episode.
Liz Cavell:
Thank you so much to everyone who submitted their questions, and thank you very much to all of our listeners who stick with us as we develop this podcast over the past year and who take the time to listen and care about the separation of church and state. Thank you.
Rebecca Markert:
We have a lot of good content coming up for you in 2024, so we hope you stay tuned. If you don't already, please be sure to check us out on our socials. We do have a Twitter feed yet, and we have Facebook and Instagram. You can also find us online we-dissent.org. We'd love to hear how you are enjoying our show, so please remember to leave us a review if you haven't already. Thanks so much for tuning in. I'm Rebecca Markert.
Liz Cavell:
And I'm Liz Cavell. Thanks for listening.
Rebecca Markert:
We Descent 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. Other production support comes from Greta Martens audio Engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
